IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 14TH FEBRUARY 2011 / 25TH MAGHA 1932 Crl.MC.No. 429 of 2011() ------------------------ CMP NO.6030/2010 IN CC.451 & 453/2006 of JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM .................... PETITIONER(S): ACCUSED ---------------------- SANDEEP, C.E.O. AND DIRECTOR, M/S.ECOM COMPUSHOP COM.LTD.,1ST FLOOR, DOHA COMPLEX, OPPOSITE TAGORE CENTENARY HALL, R.C.ROAD, KOZHIKODE. BY ADV. SRI.JAMES ABRAHAM (VILAYAKATTU) RESPONDENT(S): COMPLAINANT -------------------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI 31. 2. M/S.THE MATRIX IT SHOPPE,REPRESENTED BY MANAGING PARTNER, ZAINUDHEEN, 1ST FLOOR, MANIMURIYIL CENTRE,BANK ROAD, KOZHIKODE-688001. PUBLIC PROSECUTOR SHRI K.J.MOHAMMED ANZAR FOR R1 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.429 of 2011 -------------------------------------- Dated this the 14th day of February, 2011. ORDER Petitioner is accused No.1 in C.C.Nos.451 and 453 of 2006, both of the court of learned Judicial First Class Magistrate, Malappuram for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Case against petitioner is that he purchased computer peripherals from respondent No.2 and issued five cheques drawn on Kozhikode Branch of the drawee bank and presented the same for encashment through the UTI Bank, Kozhikode Branch but were dishonoured for insufficiency of funds. Contention of petitioner is that learned Judicial First Class Magistrate, Malappuram has no territorial jurisdiction to take cognizance of the offence since the only allegation in the complaint to attract territorial jurisdiction is that notice was issued at Malappuram. Learned counsel contends, placing reliance on the decisions in Ahammedkutty Haji v. State of Kerala (2007(1) KLT 68), Harihara Puthra Sharma v. State of Kerala (2007(1) KLT SN.43 Case 60), Harman Electronics (P) Ltd. v. National Panasonic India (P) Ltd. (2009(2) KLT 113) and Thressiamma v. State of Kerala (2010 (4) KLT 598 – paragraph 10) that mere issue of notice under Section 138 of the Act will not confer jurisdiction on the court. According to the learned counsel the entire transaction having taken place and the drawee bank also being Crl.MC No.429/2011 2 situated at Kozhikode, learned Judicial First Class Magistrate, Malappuram had no jurisdiction to take cognizance. It is argued that taking cognizance is not an empty formality. According to the learned counsel even after cognizance is taken it is within the power of the learned Magistrate to return the complaint for presentation before proper forum if it is found that he has no territorial jurisdiction to entertain the complaint. I have heard learned Public Prosecutor also. 2. The question for consideration is whether at this stage the learned Magistrate could be directed to return the complaint. A request was made before the learned Magistrate by filing C.M.P.No.6030 of 2010 and that resulted in dismissal vide Annexure-2, order dated December 30, 2010. Petitioner challenges that order in this proceeding. 3. It is not disputed that the cases were filed in the year 2006 and before that the statutory notice had been issued to the petitioner. Petitioner entered appearance, pleaded not guilty when particulars of offence was read over to him and trial commenced. While so the cases were consolidated a per order on C.M.P.No.4473 of 2010 which also was not challenged. The complainant started giving evidence and his cross examination also commenced. It is at that stage that petitioner filed C.M.P.No.6030 of 2010 requesting learned Magistrate to return the complaints on the ground of lack territorial jurisdiction. A learned Judge of this Court in Meenakshi v. Udayakumar (2007 (4) KLT 620) has held that any objection regarding Crl.MC No.429/2011 3 territorial jurisdiction if not raised at the earliest opportunity cannot be entertained by the court. Later a Division Bench of this Court in Thressiamma v. State of Kerala (supra) has held (with reference to the objection regarding territorial jurisdiction in the matter of offence under Section 138 of the Act) that any dispute as to territorial jurisdiction has to be raised at the earliest opportunity, atleast before starting of trial. Trial should commence from the stage of framing of the charge or reading of particulars of offence. In this case it is much thereafter that consolidation of the two cases was ordered, there was no objection then and even the complainant was examined in chief and to be more specific, it was in the course of cross examination that objection regarding territorial jurisdiction was raised. It is no answer to contend that the lack of territorial jurisdiction came to be noticed by the petitioner only at that stage. 4. It is not as if there is inherent lack of jurisdiction. What is pleaded is only lack of territorial jurisdiction which I stated has to be raised at the earliest opportunity and if not raised, cannot be entertained later. Learned Magistrate was correct in passing Annexure-2, order. Petition fails. It is dismissed. THOMAS P.JOSEPH, Judge. cks