IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 11TH AUGUST 2010 / 20TH SRAVANA 1932 CRL.MC.NO. 219 OF 2007() ------------------------ {CC.624/2006 OF JUDL.MAGISTRATE OF FIRST CLASS-III, KOTTAYAM} .................... PETITIONER(S): --------------- 1. NOBLE AQUA PVT.LTD., CHANDAKA INDUSTRIAL ESTATE, NEAR CHANDAKA POLICE STATION OUT POST PATIA, BHUVANESWAR-751 024, REPRESENTED BY ITS MANAGING DIRECTOR, P.K.JOHNSON. 2. P.K.JOHNSON, MANAGING DIRECTOR, NOBLE AQUA PVT.LTD., CHANDAKA INDUSTRIAL ESTATE, NEAR CHANDAKA POLICE STATION OUT POST PATIA, BHUVANESWAR-751 024. 3. MR.SUJA JOHNSON, DIRECTOR, NOBLE AQUA PVT.LTD, CHANDAKA INDUSTRIAL ESTATE, NEAR CHANDAKA POLICE STATION OUT POST, PATIA, BUVANESWAR-751 024. BY ADV. SRI.R.S.MOHANAN NAIR SRI.A.RAJASEKHARAN NAIR RESPONDENT(S): --------------- 1. VARKEY VARGHESE, AGED 54, MUTHALUPADIYIL, RUBBER BOARD-PO, PUTHUPPALLY, KOTTAYAM-686 009. 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS.SRI.SANTHAN V.NAIR SRI.RAJESH PALAMATTAM R2 BY PUBLIC PROSECUTOR SRI.B.JAYASURYA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC.NO. 219 OF 2007 :: :: ORDER ON Crl.M.A.No.392/07 IN CRL.MC.NO. 219 OF 2007 DISMISSED. Sd/- (S.S.SATHEESACHANDRAN) 11.08.2010. JUDGE sk/- //true copy// P.S. To Judge. S.S.SATHEESACHANDRAN, J. ------------------------------------------------- Crl.M.C.No.219 of 2007 ------------------------------------------------- Dated this the 11th day of August, 2010 JUDGMENT Petitioners are accused in C.C.No.624/06 pending on the file of the Judicial Magistrate of the First Class-III, Kottayam. They are prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act {for short 'the Act'}, on a complaint filed by the first respondent. The first petitioner is a company. Second petitioner is the Managing Director and third petitioner a director of the first petitioners company. 2. The gist of the complainant's case is that two cheques, issued by the petitioners, one for a sum of Rs.20 lakhs and the other for Rs.23,00,700/- were dishonoured, on presentation in due course. Intimation of dishonour given within time, as stipulated under the statute, by way of a notice, was acknowledged, but not responded to with payment or any reply. Complainant alleged that the cheques were handed over at Kottayam, where the complainant is having permanent residence. It is the further Crl.M.C.No.219 of 2007 :: 2 :: case of the complainant that the cheques were presented before the bank for encashment in the Chandapur Branch in Orissa. Notices to the accused were issued from Kottayam is the further case of the petitioners to contend that the Judicial Magistrate of the First Class, Kottayam is not having jurisdiction to entertain and try the complaint. Disputing the jurisdiction of the court to take cognizance of the offence, petitioners have filed the above petition under Section 482 of the Code of Criminal Procedure for quashing the complaint. 3. I heard the counsel on both sides. 4. The learned counsel for the petitioners onviting my attention to the allegations set out in the complaint, a copy of which is produced as Annexure A2, contended that the cheques were drawn in a bank at Bhubaneswar, presented before a branch of State Bank of India in Orissa, and the first petitioner company is also having its registered office at Orissa. For the sole reason that a notice had been Crl.M.C.No.219 of 2007 :: 3 :: issued from Kottayam and on a mere allegation that the complainant is having his permanent residence at Kottayam, it is the submission of the counsel, the courts at Kottayam will not get jurisdiction to entertain the complaint. 5. On the other hand, it is the submission of the counsel for the respondent/complainant that the cheques were issued at the residence of the complainant in Kottayam and notices were also issued from Kottayam and so much so, the courts at Kottayam have jurisdiction to entertain the complaint. In Bhaskaran v. Balan {1999(3) KLT 440}, the apex court has held that “to constitute an offence under Section 138 of the Act, the essential components thereof as contemplated under that Section have to be made out”. It has been further clarified that the essential components for constituting offence are: “(1) drawing of the cheque. (2) Presentation of the cheque with the bank Crl.M.C.No.219 of 2007 :: 4 :: (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. “ Pointing out that all the essential components need not take place in the same locality, it has been laid down by the apex court that the complainant can choose any of the courts exercising jurisdiction in any one of the local areas where the act is done. 6. Again, in Shamshad Begum v. Mohammed {2009(1) KLT 886} relying on Bhaskaran's case {1999 (3) KLT 440}, the apex court has held that the concatenation of all the five is the sine qua non for the completion of the offence under Section 138 of the Act. 8. At this stage, when the complainant has alleged in the complaint that the cheques were issued at his Crl.M.C.No.219 of 2007 :: 5 :: residence in Kottayam, prima facie, indicating that the transaction with reference to those cheques was at that place, it cannot be stated, the magistrate at Kottayam lacks territorial jurisdiction to proceed with the complaint. That being so, I find, the challenge raised against the territorial jurisdiction of the court below by the petitioner cannot be entertained by this court. There is no merit in the petition moved for quashing the proceedings on that ground invoking Section 482 of the Code of Criminal Procedure. Petition is, therefore, dismissed. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.