IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 2ND SEPTEMBER 2010 / 11TH BHADRA 1932 TR.P(CRL.).NO. 75 OF 2009() --------------------------- {ST.2551/2008 OF J.M.F.C.-IV, KOZHIKODE} .................... PETITIONER(S): COMPLAINANT -------------------------- T.S.SAJITH,VAIKUNDAM,T.C.17/2441(2), JAGATHY EAST,THYCAUD.PO,THIRUVANANTHAPURAM. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S): ACCUSED ---------------------- DR.M.K.MUNEER,MEHAFIL,JAFFARKHAN COLONY, IRANHIPALAM,KOZHIKODE. ADV. SMT.R.RANJINI THIS TRANSFER PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 10/08/2010, THE COURT ON 02/09/2010 PASSED THE FOLLOWING: TR.P(CRL.).NO. 75 OF 2009 :: ORDER ON CRL.M.A.No.3701/09 IN TR.P(CRL.).NO. 75 OF 2009 DISMISSED. Sd/- (S.S.SATHEESACHANDRAN) 02.09.2010. JUDGE sk/- //true copy// P.S. To Judge. S.S.SATHEESACHANDRAN ---------------------------------------- Tr.P.(Crl).No.75 of 2009 ----------------------------------------- Dated this the 2nd day of September, 2010 O R D E R Petitioner is the complainant. He filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short “the Act”) before the Judicial Magistrate of the First Class-III, Thiruvananthapuram. Cognizance being taken of the offence the complaint was received and numbered as S.T.No.2551/08 on the file of the court. The accused, the respondent herein, appeared in response to the summons, and denied the accusation. At the stage when the case stood posted for recording evidence, the accused raised a challenge over the territorial jurisdiction of the court to entertain the complaint. Reliance was placed on Santhosh Kumar v. Mohanan {2008 (3) KLT 461} to buttress that challenge contending that the presentation of the instrument to the bank in the case was at the place in Kozhikode, and so much so, the court at Tr.P.(Crl).No.75 of 2009 :: 2 :: that place alone has jurisdiction to entertain the complaint. The learned magistrate accepting that challenge ordered for returning the complaint. The complainant then got it back and re-presented it before the magistrate court at Kozhikode. The complaint, on such re-presentation, numbered as S.T.No.2551/08, is at present pending before the Judicial Magistrate of the First Class-IV, Kozhikode. Complainant seeks transfer of the case back to the magistrate court, Thiruvananthapuram contending that in the light of the decision rendered in Shamshad Begum v. Mohammed {2009(1) KLT 886 [SC]} by the apex court, that court has jurisdiction to entertain and proceed with the trial of the case. 2. Notice given the respondent has entered appearance through counsel. I heard the counsel on both sides. Tr.P.(Crl).No.75 of 2009 :: 3 :: 3. At the time of hearing, the learned counsel for the complainant has also raised some other grounds not stated in the transfer petition, as to why it is expedient to transfer the case to a competent magistrate court in Thiruvananthapuram. It is submitted by the counsel that the complainant and his witnesses, all of them, have permanent abode in Thiruvananthapuram and it would cause the complainant severe hardship, and lot of inconvenience to him and also the witnesses, to go over to the court at Kozhikode, for letting in evidence to substantiate his complaint. It is further urged that the accused is a known political figure and a former Minister of the State and as such, the complainant entertain reasonable apprehension as to threat to his person, both physically and mentally, in going over to Kozhikode to prosecute the complaint. Though the order for returning Tr.P.(Crl).No.75 of 2009 :: 4 :: the complaint to the proper court has not been challenged by the complainant, it is submitted by the counsel, as that order passed by the magistrate, before whom the complaint was launched, is clearly unsustainable in view of the decisions rendered by the apex court how territorial jurisdiction over a complaint under Section 138 of the Act is to be determined, the complainant is entitled to point out the illegality of the order so made as a sufficient ground to invoke the jurisdiction of this court for transferring the case back to a magistrate court in Thiruvananthapuram. 4. Per contra, the learned counsel for the respondent, hereinafter referred to as the accused, emphasizing that no ground impeaching the order of returning the complaint by the magistrate, before whom the complaint was presented, is canvassed in the petition Tr.P.(Crl).No.75 of 2009 :: 5 :: for transfer contended that without any challenge to such order till date, and, that too after having submitted to that order presenting the complaint before the magistrate court at Kozhikode where it is now pending for trial, the request made for transfer placing reliance on subsequent decision of the apex court does not merit any consideration at all. The learned counsel, relying on Santhosh Kumar's case {cited supra} contended that the returning of the complaint by the magistrate holding that the court at Thiruvananthapuram has no territorial jurisdiction was proper and correct, and even assuming that it is not so, in view of the presentation of the complaint before the court at Kozhikode after getting it back from the magistrate court at Thiruvananthapuram, the complainant can no longer impeach the correctness of the order of the magistrate returning the complaint. The apprehension Tr.P.(Crl).No.75 of 2009 :: 6 :: raised by the complainant regarding the threat to his person, and also hardship and inconvenience to him and his witnesses, it is submitted, such grounds having not been set up in the petition deserve to be taken note of only for its rejection. 5. True, the complainant has not challenged the order passed by the learned magistrate before whom the complaint was presented ordering the returning of the complaint on the ground of lack of territorial jurisdiction of his court to entertain the complaint. Further, pursuant to such order, he got back his complaint and presented it before the court at Kozhikode. That complainant, after being taken into file on such presentation, awaits trial. The present petition for transfer has been filed mainly assailing the correctness of the order passed by the magistrate at Thiruvananthapuram contending that the Tr.P.(Crl).No.75 of 2009 :: 7 :: view taken by the magistrate that his court lacked jurisdiction is clearly unsustainable in the light of the later decision rendered by the apex court viz., Shamshad Begum v. Mohammed {2009(1) KLT 886 [SC]}. Though such a ground alone has been canvassed in the petition for transfer, the learned counsel for the complainant has raised some other grounds also for invoking the jurisdiction of this court under Section 407 of the Code for transferring the complaint to a court in Thiruvananthapuram from the magistrate court in Kozhikode. 6. I cannot agree with the submissions made by the learned counsel for the accused that in a proceeding under Section 407 of the Code, this court has to confine its enquiry only on the grounds set up in the petition for transfer. The powers of transfer given to the High Court Tr.P.(Crl).No.75 of 2009 :: 8 :: under the above Section is much wider, and it has jurisdiction to transfer a case even at a stage when it has been posted for judgment. The grounds covered by sub- clauses (a) to (c) in Clause (1) of Section 407 of the Code, it has to be noted, are not exhaustive. In fact, whenever the High Court is satisfied, it is expedient “for the ends of justice” which is also specifically covered by sub-clause (c) of sub-section(1) of the Section whether or not a specific ground for transfer has been made out in the petition for transfer by the party, it can invoke its jurisdiction and pass appropriate orders for transferring a case from one court to the file of any other court. So, to examine the question whether the request for transfer made by the complainant deserve consideration, it is necessary to look into the question whether the learned magistrate before whom the complaint was presented was justified in passing an order Tr.P.(Crl).No.75 of 2009 :: 9 :: for returning the complaint accepting the challenge of the accused that his court lacked territorial jurisdiction to entertain the complaint. 7. Copy of the order passed by the magistrate (Judicial Magistrate of the First Class-III, Thiruvananthapuram) before whom the complaint was presented returning the complaint stating that his court lacked territorial jurisdiction to entertain the complaint was handed over to me during the course of the hearing of the petition. Perusing the order, it is seen, that order was passed solely relying on the decision of this court in Santhosh Kumar's case {cited supra}, upholding the challenge raised by the accused over the territorial jurisdiction of the court to entertain the complaint. In the above decision, this court, after adverting to the decision of the apex court in Bhaskaran v. Balan {1999 (3) KLT 440 Tr.P.(Crl).No.75 of 2009 :: 10 :: (SC)} has held that the later decision of the apex court in Ishar Alloy Steels Ltd. v. Jayaswants Neco Ltd. {2001(2) KLT 148(SC)} rendered by a larger bench must influence and bind the courts in understanding and interpreting the law and it is not possible to give a wider and expansive meaning that the presentation of the cheque to the bank to include the bank of the drawee at a different place to which the complainant had presented the cheque and from which he collected the cheque on its dishonour. Presentation of the cheque by the drawee at any bank as he chooses, it was held, would not confer jurisdiction at that place to file the complaint. I do not find that the above decision in Santhosh Kumar's case {cited supra} in any manner assist the accused herein to show that the magistrate court at Thiruvananthapuram, before which the complaint was presented lacked territorial jurisdiction to Tr.P.(Crl).No.75 of 2009 :: 11 :: entertain the complaint. In Santhosh Kumar's case, this court had only clarified the second venue among the five venues stated in Bhaskaran's case all of which could be treated as conferring right on the drawee on the dishonour of the cheque in the matter of territorial jurisdiction to file a complaint. This court has only stated that the presentation of cheque as under the second venue has to be looked into and understood with reference to the latter decision rendered by the apex court in Ishar Alloy Steels Ltd's case (cited supra). In Bhaskaran's case (cited supra), the apex court held that the offence under Section 138 of the Act is completed only with the concatenation of number of acts. The components of the said offence are: “(1) drawing of the cheque. (2) Presentation of the cheque with the bank (3) Returning the cheque unpaid by the drawee bank, Tr.P.(Crl).No.75 of 2009 :: 12 :: (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. “ 8. Dilating further, it was pointed out, that all the above five acts could be done at five different localities, but the concatenation of the above five is the sine qua non for the completion of the offence under Section 138 of the Act. If five different acts were done in five different localities, it was held, any one of the courts exercising jurisdiction in any one of the five local areas can become the place of trial for the offence under Section 138 of the Act. The complainant has the right to choose any one of those courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those acts was done, it is unmistakably spelt out by the aforesaid decision. The above view in Bhaskaran's case (cited supra) Tr.P.(Crl).No.75 of 2009 :: 13 :: was reiterated by the apex court in Shamshad Begum's case {2009(1) KLT 886 [SC]}. With respect to venue No.4 covered by Bhaskaran's case, which dealt with the issuing of notice, the apex court in Harman Electronics Pvt. Ltd. & anr v. National Panasonic India Pvt. Ltd. {2009(1) SCC 720} clarified that issue of notice would not, by itself, give rise to a cause of action, but the communication would, and so much so, the place of issue of notice as such would not confer jurisdiction to entertain a complaint before the court at that place. The above decision of the apex court in Harman Electronics Pvt. Ltd 's case and also Santhosh Kumar's case do not in any way run counter to the law laid down by the apex court in Bhaskaran's case (cited supra) and later reiterated in Shamshad Begum's case (cited supra), but only explained how the question of jurisdiction relating to a complaint with reference to venue Numbers 2 Tr.P.(Crl).No.75 of 2009 :: 14 :: and 4, the presentation of the cheque and issuance of notice, has to be examined by the court. 9. Annexure I is the copy of the complaint filed by the petitioner before the Judicial Magistrate of the First Class-III, Thiruvananthapuram. It says that the cheque for Rs.10 lakhs was drawn at State Bank of India, Nadakkavu Branch, Kozhikode. It was later presented for collection through the complainant's bank, State Bank of India, Thiruvananthapuram Branch. The cheque was returned dishonoured to the complainant's bank by the drawer branch of that bank for the reason 'funds insufficient'. Complainant collected the cheque and the dishonour memo from his bank, State Bank of India, Thiruvananthapuram Branch. He sent a registered notice from Thiruvananthapuram and it was returned with the endorsement “addressee out of station, intimation sent”. Tr.P.(Crl).No.75 of 2009 :: 15 :: Stating that the cheque was returned 'unclaimed' and as such there was effective service, within the statutory period, the complaint was filed. At the stage when the complaint case came up for recording evidence and the affidavit towards his examination-in-chief was filed by the complainant, Annexure A2 petition was filed by the accused contending that no cause of action had arisen within the territorial jurisdiction of the magistrate court in Thiruvananthapuram and it has no jurisdiction to try the case. The averment made in paragraph 7 of the complaint that “the cheque was presented at the State Bank of India, Statue, Thiruvananthapuram, and so this Hon'ble Court has jurisdiction to take cognizance of the offence as the place where the bank is situated is within the jurisdiction of Cantonment Police Station” was highlighted by the accused with reference to the admitted fact that the cheque in Tr.P.(Crl).No.75 of 2009 :: 16 :: question was dishonoured at State Bank of India, Nadakkavu Branch, Kozhikode, the drawee bank, to contend that there was lack of jurisdiction of the above court at Thiruvananthapuram, placing reliance on Santhosh Kumar's case. 10. In the light of the decision in Shamshad Begum's case (cited supra), reiterating Bhaskaran's case (cited supra) that regard must be had to the concatenation of the five components for completion of the offence under Section 138 of the Act, issuance of the notice with acceptance of communication whether it is by service by acknowledgement or returning as unclaimed, it has to be held, in the present case, the complaint presented before the court at Thiruvananthapuram from where notice was issued and later to which it was returned with the endorsement, referred to above, indicating that it was Tr.P.(Crl).No.75 of 2009 :: 17 :: 'unclaimed' has territorial jurisdiction to entertain the complaint. In the light of the decision rendered by the apex court in Shamsad Beegum's case, the issuance of notice and communication thereof to the accused has to be accepted as empowering and enabling the complainant to choose such place for filing his complaint and the court at such place as having jurisdiction to entertain such complaint. 11. Observations made by the apex court in Herman Electronics's case over the question of jurisdiction relating to complaints imputing offence punishable under Section 138 of the Act is quite relevant and of much value. The apex court has stated that “it is necessary in a case of this nature to strike balance between the accused and the accused vis-a-vis the provisions of the Code of Criminal Procedure”. So, on the facts presented where it is seen, Tr.P.(Crl).No.75 of 2009 :: 18 :: the complaint presented before the court at Thiruvananthapuram has jurisdiction to entertain the complaint as at least one of the components of the offence under Section 138 of the Act has taken place within its jurisdiction, the order made by the magistrate at Thiruvananthapuram for returning the complaint holding that his court lacked jurisdiction was not correct. Though the order has not been challenged, as indicated earlier in considering request for transfer made by the complainant, impropriety of that order cannot be overlooked in considering the request for transfer. 12. Complainant has not placed any material to substantiate the submissions made by his counsel as to the threat from the accused in having the continuation of the trial before the magistrate court at Kozhikode. For the sole reason that the accused is a known political figure and Tr.P.(Crl).No.75 of 2009 :: 19 :: perhaps commanding substantial influence over the people at large in the locality at the place where the complaint is now pending, viz., Kozhikode, it is unreasonable to accept the apprehension expressed by the complainant, that he would face threat from the accused in prosecuting his complaint at that place and thus be denied of a fair trial. However, his grievance that he would face severe hardship and lot of inconvenience in prosecuting the complaint at the court in Kozhikode as it would necessitate summoning the witnesses to that place to give evidence to substantiate his complaint cannot be brushed aside as meritless. Where it is shown that the court to which he presented the complaint has jurisdiction, to entertain his complaint, the grievance expressed by him as above has to be taken note of. So much so, I find, the request of the petitioner/complainant for transfer of the case from the Tr.P.(Crl).No.75 of 2009 :: 20 :: magistrate court Kozhikode to the Thiruvananthapuram Court deserve to be granted and accordingly S.T.No.2551/08 pending on the fileof the Judicial Magistrate of the First Class, Kozhikode is ordered to be transferred to the Judicial Magistrate of the First Class-III, Thiruvananthapuram. The transferee court shall fix a specific date of hearing and proceed with the case to dispose it of expeditiously, at any rate, within a period of six months from the date of receipt of the records of the case from the magistrate court, Kozhikode. Petition is allowed as above. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy//