Case: Musaraf Hossain Khan Vs. Bhagheeratha Engg. Ltd. &amp; Others

3. The appellant herein entered into a contract with the Respondent No. 1 herein (Company) for supply of stone chips. The company used to hand over post-dated cheques to the appellant towards the price of stone chips as also transport, handling, postage and other charges. The Company had issued six cheques of the following description in favour of the appellant:4. The aforementioned cheques were deposited with Mayurakhi Gramin Bank Suri branch but they were returned by the Banker stating full cover not received. A demand notice was sent by the appellant demanding payment of the said cheque to the respondent in September, 2004. Out of the aforementioned sum of Rs. 35,48,640/- a sum of Rs. 5,33,795/- was paid by respondent No. 4 on or about 15.9.2004. The appellant alleged that a sum of Rs. 30,14,845/- is still due and owing to him from the respondents. The respondents admit the claim of the appellant. They are said to have assured him that the rest of the amount shall be paid, but the same has not been done5. The appellant on the aforementioned allegations filed a complaint petition in the court of Chief Judicial Magistrate, Birbhum at Suri which was registered as CC No. 339 of 2004. By an order dated 10.11.2004 the Chief Judicial Magistrate upon examining the appellant on oath took cognizance of the said offence stating:.Hd. Considered. Cog. Is taken. Examined the complainant Mosaraf Hossain on S/A. A Prima facie case has been made out against the accused persons u/s. 138 N.I. Act. Issue summons upon the accds Persons at once. To 3/2/05 for S/R & appear6. The respondents allegedly received the summons sent to them at Kolaghat, Midnapore, West Bengal. Despite receipt of the summons instead of appearing before the Court of the Chief Judicial Magistrate, Birbhum at Suri, the respondents filed a writ petition in the High Court of Kerala at Ernakulam which was registered as W.P. (C) No. 2666 of 2005 praying, inter alia, for the following reliefs :a) declare that the petitioners herein are not liable to be proceeded against on the basis of Ext. P4 complaint;b) declare that the petitioners herein are not liable to be proceeded against on the basis of Ext. P4 complaint;c) issue an appropriate writ, order or direction quashing Ext. P4 complaint;7. Interim relief by way of stay of all further proceedings pursuant to the said complaint petition including the arrest of the petitioners; pending final disposal of the said writ petition was also prayed for8. A learned Single Judge of the Kerala High Court on 25.1.2005 passed the following order:Notice and interim stay for six months. The said order of stay is said to have been extended from time to time

Reasoning:
23. It is no doubt true that in a criminal matter also the High Court may exercise itsy writ jurisdiction but interference with an order of Magistrate taking cognizance under Section 190 of the Code of Criminal Procedure will stand somewhat on a different footing as an order taking cognizance can be the subject matter of a revisional jurisdiction as well as of an application invoking the inherent jurisdiction of the High Court. A writ of certiorari ordinarily would not be issued by a writ court under Article 226 of the Constitution of India against a Judicial Officer. [See Naresh Shridhar Mirajkar & Ors. vs. State of Maharashtra & Anr. [AIR 1967 SC 1 : (1966) 3 SCR 744 ]. However, we are not oblivious of a decision of this Court in Surya Dev Rai vs. Ram Chander Rai & Ors. [(2003) 6 SCC 675] wherein this court upon noticing Naresh Shridhar Mirajkar (supra) and also relying on a Constitution Bench of this Court in Rupa Ashok Hurra vs. Ashok Hurra [(2002) 4 SCC 388] opined that a Judicial Court would also be subject to exercise of writ jurisdiction of the High Court. The said decision has again been followed in Ranjeet Singh vs. Ravi Prakash [(2004) 3 SCC 692]. It is, however, not necessary to dilate on the matter any further. The jurisdiction of the High Court under Section 482 of Code of Criminal Procedure was noticed recently by this Court in State of U.P. & Ors. vs. Surendra Kumar [(2005) 9 SCC 161] holding that even in terms thereof, the court cannot pass an order beyond the scope of the application thereof. In Surya Dev Rai (supra), we may however, notice that this Court categorically stated that the High Court in issuing a writ of certiorari exercises a very limited jurisdiction. It also made a distinction between exercise of jurisdiction by the High Court for issuance of a writ of certiorari under Article 226 and 227 of the Constitution of India. It categorically laid down that while exercising its jurisdiction under Article 226, the High Court can issue a writ of certiorari only when an error apparent on the face of the record appears as such; the error should be self evident. Thus, an error according to this Court needs to be established26. We have referred to the scope of jurisdiction under Articles 226 and 227 of the Constitution only to highlight that the High Courts should not ordinarily interfere with an order taking cognizance passed by a competent court of law except in a proper case. Furthermore only such High Court within whose jurisdiction the order of subordinate court has been passed, would have the jurisdiction to entertain an application under Article 227 of the Constitution of India unless it is established that the earlier cause of action arose within the jurisdiction thereof27. The High Court, however, must remind themselves about the doctrine of forum non conveniences also30. Sending of cheques from Ernakulam or the respondents having an office at that place did not form an integral part of cause of action for which the complaint petition was filed by the appellant and cognizance of the offence under Section 138 of the Negotiable Instruments Act, 1881 was taken by the Chief Judicial Magistrate, Suri. We may moreover notice that the situs of the accused wherefor jurisdiction of a court can be invoked and which is an exception to the aforementioned provisions as contained in Section 188 of the Code of Criminal Procedure recently came up for consideration by this court in Om Hemrajani vs. State of U.P. & Anr. [(2005) 1 SCC 617] 31. In this case, the averments made in the writ petition filed by the respondent herein even if given face value and taken to be correct in their entirety would not confer any jurisdiction upon the Kerala High Court. The agreement was entered into within the jurisdiction of the Calcutta High Court. The project for which the supply of stone chips and transportation was being carried out was also within the State of West Bengal. Payments were obviously required to be made within the jurisdiction of the said court where either the contract had been entered into or where payment was to be made32. The appellant did not deny or dispute any of the averments made in the complaint petition. In the writ petition it merely wanted some time to make the payment. It is now well known that the object of the provision of Section 138 of the Act is that for proper and smooth functioning of business transaction in particular, use of cheques as negotiable instruments would primarily depend upon the integrity and honesty of the parties. It was noticed that cheques used to be issued as a device inter alia for defrauding the creditors and stalling the payments. It was also noticed in a number of decisions of this Court that dishonour of a cheque by the bank causes incalculable loss, injury and inconvenience to the payee and the entire credibility of the business transactions within and outside the country suffers a serious setback. It was also found that the remedy available in a civil court is an process and an unscrupulous drawer normally takes various pleas to defeat the genuine claim of the payee. [See Goa Plast (P) Ltd. vs. Chico Ursula DSouza(2004) 2 SCC 235] and Monaben Ketanbhai Shah and Anr. vs. State of Gujarat & Ors.(2004) 7 SCC 15] 34. For the purpose of proving the aforementioned ingredients of the offence under Section 138 of the Act, thet was required to prove the facts constituting the cause of action therefor none of which arose within the jurisdiction of the Kerala High Court. It is, apt to mention that In Prem Chand Vijay Kumar (supra) this Court held that cause of action within the meaning of Section 142 (b) of the Act can arise only once.