IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 1ST JANUARY 2009 / 11TH POUSHA 1930 Crl.Rev.Pet.No. 3972 of 2008() ------------------------------ CMP.2310/2008 of CHIEF JUDICIAL MAGISTRATE COURT, PALAKKAD .................... REVN. PETITIONER(S): COMPLAINANT: ------------------------------------------ SREE GOKULAM CHIT AND FINANCE CO.(P) LTD DIVISIONAL OFFICE AT SANJOS TOWERS, OPP. K.S.R.T.C BUS STAND, SHORANUR ROAD, PALAKKAD REPRESENTED BY ITS LEGAL CLERK K.K.SUBASHKUMAR, S/O.MR.KRISHNAN, AGED 26 YEARS, RESIDING AT PULINELLI, KOTTAYI, PALAKKAD. BY ADV. SRI.K.S.BABU SMT.N.SUDHA RESPONDENT(S): ACCUSED & STATE: ------------------------------------------ 1. DIVYA, W/O.SATHEESHKUMAR.N, NEDUVENCHERRY HOUSE, THIRUVIZHAMKUNNU POST, MANNARKKAD TALUK, PALAKKAD DIST., (WITHIN THE MANNARKKAD POLICE STATION LIMITS). 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M. NAZAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 3972 OF 2008 =========================== Dated this the 1st day of January,2009 ORDER Revision petitioner is the complainant in C.M.P.2310/2008 on the file of Chief Judicial Magistrate Court, Palakkad. The complaint was lodged against first respondent alleging that she committed the offence under section 138 of Negotiable Instruments Act. Learned Magistrate after accepting the affidavit filed by the complainant, in lieu of sworn statement, as per the impugned order relying on the decision of this court in Santhoshkumar M.S v. Mohanan K.G (ILR 2008 (3) Kerala 303) returned the complaint for presentation before the proper court. The order is challenged in this revision. As the impugned order was passed before issuing process under section 204 of Code of Criminal Procedure, it is not necessary to issue notice to first respondent. CRRP 3972/2008 2 2. Learned counsel appearing for the revision petitioner pointed out that learned Magistrate before returning the complaint for presentation before proper court did not consider the question whether the complaint will lie before that court in view of the decision of the Apex Court in Bhaskaran v. Balan (1999(3) KLT 440) and omitted to take note of the specific allegations in paragraph 7 of the complaint to the effect that the dishonoured cheque was handed over by the first respondent at Palakkad and the transaction had taken place at the Branch Office of the complainant at Palakkad and the banker of the complainant is also within the jurisdiction of the said court. There is force in the submission. 3. The Apex Court in Bhaskaran's case considering the question of territorial jurisdiction of the courts to try the offence under section 138 of Negotiable Instruments Act held:- CRRP 3972/2008 3 “14. The offence under S.138 of the Act can be completed only with the concatenation of a number of acts. Following are the acts which are components of the said offence: (1) Drawing of the cheque, (2) Presentation of the cheque to the bank, (3) Returning the cheque unpaid by the drawee bank, (4) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) Failure of the drawer to make payment within 15 days of the receipt of the notice.” Therefore if any of the components of the offence had taken place within the jurisdiction of the court of Chief Judicial Magistrate, Palakkad, the said court has definitely jurisdiction to try the case. Components are (1) drawing of the cheque, CRRP 3972/2008 4 (2) presentation of the cheque to the Bank, (3) returning the cheque unpaid by the drawee bank (4) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount and (5) Failure of the drawer to make payment within 15 days of receipt of the notice. 4. A learned single Judge of this court in Ahammedkutty Haji v. State of Kerala (2007(1) KLT 68) had occasion to consider the question of territorial jurisdiction claimed in view of the notice issued under section 138(b) of the Negotiable Instruments Act within the jurisdiction of the court. Following the dictum in Bhaskaran's case it was held that “notice of demand must be deemed or presumed as made by the complainant and on behalf of the complainant and therefore the demand must be held to be made at the place where the complainant permanently resides.” Though in Santhoshkumar's case (supra) relied on by the learned Magistrate, the same Judge had held that by CRRP 3972/2008 5 sending a notice within the jurisdiction of that court alone, the court will not get jurisdiction, that does not mean that if the notice was sent at the place of residence of the complainant or the place where the complainant is engaged in his business, it will not vest the power of jurisdiction to the court to try for the offence. The learned Magistrate was not justified in following the decision in Santhoshkumar;s case, mechanically without considering what was held by this court in the said decision. This court only held that if the place of residence is not within the jurisdiction of that court or his place of business is not within the jurisdiction of that court by sending a notice through a lawyer practising within that court alone the court will not get territorial jurisdiction. That principle cannot be applied in a case where the complainant is residing within the jurisdiction of that court or the place of his business is within the jurisdiction of the court. When the complainant CRRP 3972/2008 6 specifically pleaded in the complaint that the cheque was handed over at Palakkad and the transaction had taken place at the branch office of the complainant at Palakkad, learned Magistrate was not justified in directing return of the complaint mechanically following the decision in Santhoshkumar's case without considering the pleading. The order in CMP 2310/2008 is set aside. The Magistrate is directed to proceed with the complaint in accordance with law. Send the original complaint forthwith to the court of Chief Judicial Magistrate, Palakkad. Revision petitioner is directed to appear before that court on 3.2.2009. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006