IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 4TH FEBRUARY 2009 / 15TH MAGHA 1930 Crl.MC.No. 441 of 2009() ------------------------ CMP NO.2915/08 OF THE ACJM COURT, ERNAKULAM. PETITIONER(S): COMPLAINANT:1 ---------------------------- M/S.SREE GOKULAM CHIT AND FINANCE COMPANY PVT. LTD. HAVING CORPORATE OFFICE AT NO.66 ARCOT ROAD, CHENNAI-24, HAVING DIVISIONAL OFFICE AT SHERIN BUILDING, JOSE JUNCTION, M.G.ROAD, ERNAKULAM-16, AND HAVING BRANCH AT THRIPUNITHURA REPRESENTED BY ITS P/A HOLDER P.V.JAMES. BY ADV. SMT.A.SREEKALA RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SMT.SANTHA, W/O.PADMANABHAN NAIR, PARAMBIN KOYILOTH, THURUTHIYAD P.O., BALUSSERY, PIN 673 612. PUBLIC PROSECUTOR SRI. P.A. SALIM. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 441 of 2009 ------------------------------------------------- Dated this the 4th day of February, 2009 ORDER The petitioner is the complainant in a prosecution for the offence punishable under Sec.138 of the Negotiable Instruments Act. The petitioner is a Company. The Branch Manager of the Company at Thripunithura, Ernakulam has filed the complaint. The respondent/accused is a person residing at Balussery in Kozhikode. When the complaint was filed on 19/8/08, along with the complaint, an affidavit under Sec.145 of the N.I. Act was filed. The same was received. The matter was posted for enquiry under Sec.202 Cr.P.C. evidently in the light of the amended Sec.202 Cr.P.C. which obliges the Magistrate to conduct an enquiry under Sec.202 Cr.P.C. when the accused person resides outside the jurisdiction of the learned Magistrate. 2. In the complaint and in the affidavit filed initially Crl.M.C. No. 441 of 2009 -: 2 :- under Sec.145 of the N.I. Act it is alleged that the court of the Additional Chief Judicial Magistrate, Ernakulam has jurisdiction to take cognizance of the offence. In para-4, the precise allegations which confer jurisdiction on the learned ACJM are stated thus: “4. The cheque issued by the accused was dishonoured due to insufficiency of funds in her bank account. The accused has not paid the amount as per the above cheque so far, in spite of the notice issued to her. The cheque was presented for collection by the complainant through the Vijaya Bank, Thripunithura Branch which is within the jurisdiction of this Hon'ble Court and the cause of action has arisen within the jurisdiction of this Hon'ble Court.” (emphasis supplied) 3. The complaint was filed within days of pronouncement and reporting of the decision in Santhosh Kumar v. Mohanan (2008 (3) KLT 461). The petitioner and his counsel appear to have noted the requirement of filing an additional affidavit to explain the circumstances under which the learned ACJM, Ernakulam, can be said to have jurisdiction to entertain the complaint under Sec.138 of the N.I. Act. Therefore, an Crl.M.C. No. 441 of 2009 -: 3 :- additional affidavit was filed on 21/1/09. The learned ACJM did not go into the additional affidavit filed and proceeded to dispose of the complaint by passing the impugned order holding that the court has no jurisdiction to take cognizance of the offence in the light of the decision in Santhosh Kumar. 4. The petitioner claims to be aggrieved by that order. The learned counsel for the petitioner submits that in the light of the position of law that prevailed earlier, it was not necessary for the complainant to further explain the circumstances under which the learned ACJM could entertain the jurisdiction. It was specifically stated in para-4 that the cause of action had arisen within the jurisdiction of the learned Magistrate. In the light of the decision in Santhosh Kumar the need for further elucidation was felt and hence a further affidavit was filed. The learned ACJM has not referred to the further affidavit in the impugned order dated 21/1/09 returning the complaint for presentation to the appropriate court. An identical issue with the same complainant was considered as per order dated 30/1/2009 in Crl.M.C.No.457/2009. The learned counsel for the petitioner prays that identical orders may be passed and the petitioner may be given an opportunity to argue before the learned ACJM in the light of the further affidavit filed, that the learned Magistrate has jurisdiction to proceed with the matter. Crl.M.C. No. 441 of 2009 -: 4 :- 5. I find the said request to be absolutely justified. The learned Magistrate must, in the facts and circumstances of this case, consider the assertion of the petitioner that the learned Magistrate has jurisdiction in the light of the further affidavit filed and in the light of any further enquiry under Section 202 Cr.P.C which the learned Magistrate may conduct. 6. In the result, (a) This Crl.M.C is allowed. (b) The impugned order is set aside. (c) The learned Magistrate is directed to consider the matter afresh and pass appropriate orders under Section 203/204 Cr.P.C in the light of the additional affidavit filed and any further material which may be placed before him under Section 202 Cr.P.C. (d) The petitioner shall re-present the complaint before the learned ACJM on or before 16/2/2009. 7. The Registry shall forthwith return the original complaint and the affidavits to the petitioner for re-presentation before the learned Magistrate. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.M.C. No. 441 of 2009 -: 5 :-