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2010 DIGILAW 744 (KER)

Thressiamma v. State of Kerala

2010-09-28

P.S.GOPINATHAN, PIUS C.KURIAKOSE

body2010
ORDER P.S. Gopinathan, J. 1. Petitioner in Crl.M.C.551 of 2008 residing at Thiruvananthapuram, is alleged to have owed a sum of Rs.66,500/- to the second respondent who is having registered office at Mumbai and branch office at Kochi. In discharge of that liability, a cheque dated 13.3.2006 drawn on Post Office Savings Bank, Thiruvanathapuram was issued. When presented for collection it was returned dishonoured for insufficiency of funds. The second respondent, through a lawyer at Pathanamthitta, caused a notice demanding discharge of the liability. But the liability was not discharged. With these allegations and stating that the second respondent had caused the lawyer notice from Pathanamthitta within the territorial limits of the Chief Judicial Magistrate, Pathanamthitta, Annexure-1 complaint under Ss.138 and 142 of the Negotiable Instruments Act was preferred before the Chief Judicial Magistrate, Pathanamthitta. The learned Magistrate took cognizance and issued process. 2. Alleging that the Chief Judicial Magistrate, Pathanamthitta would not get jurisdiction to entertain the complaint for the sole reason that notice was caused from Pathanamthitta by the lawyer residing within the limits of Chief Judicial Magistrate, Pathanamthitta and that the cognizance was taken without jurisdiction, the accused filed Crl.M.C. under S.482 of the Code of Criminal Procedure seeking an order to quash Annexure-1 complaint. 3. The revision petitioner in Crl.R.P.No.313/08 was prosecuted by the second respondent therein before the Chief Judicial Magistrate, Pathanamthitta alleging offence under S.138 of the Negotiable Instruments Act. It is with an allegation that the revision petitioner owed a sum of Rs.6,00,000/- to the second respondent and in discharge of that liability, the revision petitioner issued a cheque drawn on Federal Bank, Valakam Branch, which was marked as Ext.P1 for the said amount and that when sent for collection, Ext.P1 was dishonoured for insufficiency of funds. The revision petitioner is staying at Kottarakkara and the second respondent is staying at Elamad. Both places are within the territorial limits of the Judicial Magistrate of the first Class, Kottarakkara. Notice demanding discharge of the liability was caused by a lawyer from his office at Pathanamthitta situated within the territorial limits of the Chief Judicial Magistrate, Pathanamthitta. The second respondent preferred the complaint before the Chief Judicial Magistrate, Pathanamthitta alleging offence u/s.138 of Negotiable Instruments Act stating that since the notice was caused from Pathanamthitta, the Chief Judicial Magistrate, Pathanamthitta had jurisdiction to entertain the complaint. 4. The second respondent preferred the complaint before the Chief Judicial Magistrate, Pathanamthitta alleging offence u/s.138 of Negotiable Instruments Act stating that since the notice was caused from Pathanamthitta, the Chief Judicial Magistrate, Pathanamthitta had jurisdiction to entertain the complaint. 4. The learned Magistrate took cognizance, issued process and the revision petitioner was sent for trail since he pleaded not guilty. No objection regarding the territorial jurisdiction was raised. After due trail, the revision petitioner was found guilty. Consequently, he was convicted and sentenced to simple imprisonment for one year and to pay Rs.6,00,000/- as compensation to the second respondent. Aggrieved by the above conviction and sentence, he preferred Crl.A.No.422 of 2006 before the Sessions Judge, Pathanamthitta. The appeal was subsequently made over to the Additional Sessions Judge, Pathanamthitta. The Additional Sessions Judge, Pathanamthitta, by judgment dated 29.10.2007, whole confirming the conviction, reduced the substantive sentence to simple imprisonment for six months. Assailing the legality, correctness and propriety of the above conviction and sentence, the Revision Petition was preferred. 5. Inter alia the revision petitioner had taken up a contention that the Chief Judicial Magistrate, Pathanamthitta would not get jurisdiction to entertain the complaint for the reason that notice was caused from Pathanamthitta by the lawyer residing within the jurisdiction of the Chief Judicial Magistrate, Pathanamthitta. 6. When Revision Petition came up before a learned Single Judge of this Court, the learned Judge noticed that going by the dictum laid down by the Apex Court in Bhaskaran v. Sankaran Vaidyan Balan ( 1999 (3) KLT 440 (SC)), a complaint under S.138 of the Negotiable Instruments Act can be filed in a Court having territorial jurisdiction over the place of giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, in addition to the places of drawing of the cheque, presentation of the cheque to the bank, return of the cheque paid by the drawee bank and failure of the drawer to make payment within the time stipulated. But in Harihara Puthra Sharma v. State of Kerala (2007 (1) KLT SN 43 (C.No.60) = ILR 2006 (4) Ker.901) and Ahammedkutty Haji v. State of Kerala ( 2007 (1) KLT 68 ), two learned Judges of this Court had taken a contrary view that mere sending of notice from the office of lawyer at a particular place will not confer jurisdiction on the Court at the place where the lawyer who demanded the payment has his office. If the rulings in the latter two cases are applied, the Chief Judicial Magistrate, Pathanamthitta, who conducted the trial had no territorial jurisdiction. The learned Single Judge, in the above circumstance, by order dated 13.2.2008 in Crl.R.P.No.313/08, observed that the view taken by the learned Judges in Harihara Puthra Sharma and Ahammedkutty Haji case, decisions is opposed to the law laid down by the Apex Court in Bhaskaran case (supra) and opined that it requires an authoritative pronouncement by a Division Bench. Accordingly the file was ordered to be placed before the Hon'ble the Chief Justice. Thus the matter was referred to this Bench. Crl.M.C. was also ordered to be placed before the Hon'ble the Chief Justice in the light of the reference in Crl.R.P. Thus it was also referred to this Bench. The question now posed before us is:- Whether a Magistrate having territorial jurisdiction over a place from where notice under Proviso (b) to S.138 was given would get jurisdiction to try a case for offence under S.138 of the Negotiable Instruments Act? 7. We heard the learned counsel on either side in both matters as well as the government Pleader. In addition to the three decisions mentioned earlier, the decisions in Santhosh Kumar v. Mohanan ( 2008 (3) KLT 461 ), Shamshad Begum v. Mohammed (2009 (1) KLT 886 (SC)), Harman Electronics (P) Ltd. v. National Panasonic India (P) Ltd. (2009 (2) KLT 113 (SC) were also brought to our consideration. 8. In Bhaskaran's case (supra) at paragraphs 14, 15 and 16, it is held as follows: 14. The offence u/S.138 of the Act can be completed only with the concatenation of a number of acts. 8. In Bhaskaran's case (supra) at paragraphs 14, 15 and 16, it is held as follows: 14. The offence u/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. 15. It is not necessary that all the above five acts should have been perpetrated at the same locality. It is possible that each of those five acts could be done at 5 different localities. But concatenation of all the above five is a sine qua non for the completion of the offence under S.138 of the Code. In this context a reference to S.178(d) of the Code is useful. It is extracted below: Where the offence consists of several acts done in different local areas, it may be inquired into or tried by a court having jurisdiction over any of such local areas. 16. Thus it is clear, if the five different acts were done in five different localities any one of the courts exercising jurisdiction in one of the five local areas can become the place of trail for the offence under S.138 of the Act. In other words, the complainant can 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 five acts was done. As the amplitude stands as widened and so expansive it is idle exercise to raise jurisdictional question regarding the offence under S.138 of the Act. 9. In Harihara Puthra Sharma case (supra) the parties were residing at A door, but the complaint was filed before the Chief Judicial Magistrate, Pathanamthitta with a statement that the notice was issued from Pathanamthitta. In that case, a learned Judge of this Court in paras.20 and 21 held as follows: 20. Undoubtedly, Ss.177 to 182 in chapter XIII of the Code of Criminal Procedure cannot be overlooked. In that case, a learned Judge of this Court in paras.20 and 21 held as follows: 20. Undoubtedly, Ss.177 to 182 in chapter XIII of the Code of Criminal Procedure cannot be overlooked. The concomitant components of the offence punishable under S.138 of the Act being such, it has to be borne in mind that one of the several acts leading to the commission of the offence will not take away the jurisdiction of the Court within the territory of which the majority of the acts had been perpetrated S.178(d) of the Code has to be read in the backdrop of the peculiar nature of the offence punishable under S.138. The observations of their Lordships in Bhaskaran case extracted supra have to be read and understood in that context. In that view of the matter, the respondent-complainant in this case may not be able to draw any support from the above decision of the Apex Court. 21. Having regard to the entire facts and circumstances of the case on hand, I am satisfied that the complainant is not entitled to institute the complaint before the court at Pathanamthitta. Since the major part of the transaction like issuance of the cheque, its presentation and dishonour, having taken place at Adoor, it may not be just or proper to allow the complainant to prosecute the petitioner/accused before the Chief Judicial Magistrate Court at Pathanamthitta solely for the reason that the complainant had engaged a counsel at Pathanamthitta to issue the statutory demand notice. In my view, the method adopted by the complainant is clearly intended to harass the petitioner. This cannot be permitted. Allowing the petition under S.482 Cr.P.C., the Chief Judicial Magistrate, Pathanamthitta was order to return the complaint. 10. In Ahamedkutty Haji case (supra), the transaction took place within the territorial limits of the Judicial Magistrate of the First Class, Pattambi. The complaint was filed before the Judicial Magistrate of the First Class, Ottappalam stating that notice was caused from Ottappalam. In that case, the learned Judge of this Court, at paragraph, held as follows: According to me it would be myopic to understand the decision in K. Bhaskaran (supra) as conferring jurisdiction on the court within the jurisdiction of which the lawyer who made the demand has his office or has put the notice into post. In that case, the learned Judge of this Court, at paragraph, held as follows: According to me it would be myopic to understand the decision in K. Bhaskaran (supra) as conferring jurisdiction on the court within the jurisdiction of which the lawyer who made the demand has his office or has put the notice into post. Notice of demand is issued in the name of and on behalf of the complainant. Whatever be the physical place of presence of the person making the notice of demand on behalf of the complainant, such notice of demand must be deemed or presumed to be made at the place where the complainant permanently resides or has his place of business. It would be traversity of justice to assume in such as situation that the notice of demand is made at the place where the notice is put into post or where the person who makes the demand on behalf of the complainant happens to be present. Such approach might lead to ridiculous and preposterous consequences. One cannot obviously engage a lawyer at a far off place to make a demand on his behalf against the indicatee and later contend that the court at such place of the lawyer has jurisdiction. It would be improper to read and understand ingredient 4 referred above in K. Bhaskaran (supra) as conferring jurisdiction on the court at the place where the lawyer who demanded the payment is. The demand is and must be resumed, assumed and reckoned 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 is. Allowing the petition under S.482 Cr.P.C., the Judicial Magistrate of the First Class, Ottapalam was directed to transmit the records to the Judicial Magistrate of the First Class, Pattambi. 11. In Shamshad Begum v. B. Mohammed (2009 (1) KLT 886 (SC)) the issue before the Apex Court was one identical to Bhaskaran case (supra). In that case, the transaction occurred at Bangalore. The parties were residing at Bangalore. Notice and reply notice were caused from Mangalore. Relying upon the ratio in Bhaskaran case, it was held that the court at Mangalore had the jurisdiction to try the case. 12. In that case, the transaction occurred at Bangalore. The parties were residing at Bangalore. Notice and reply notice were caused from Mangalore. Relying upon the ratio in Bhaskaran case, it was held that the court at Mangalore had the jurisdiction to try the case. 12. In Harman Electrics (P) Ltd. V. National Panasonic India (P) Ltd. (2009 (2) KLT 113 (SC) an identical issue as in Bhaskaran case arose. The transaction occurred at Chandigrah. The notice was caused by a lawyer residing at Delhi. Referring to Bhaskaran case; at para.10, it has been held by another Bench of the Apex Court, as follows: The court however refused to give a strict interpretation to the said provisions despite noticing Black Law Dictionary in regard to the meaning of the terms giving of notice and receiving of notice in the following terms: 19. In Black Law Dictionary, giving of notice is distinguished from receiving of the notice (vide page 621). A person notifies or gives notice to another by taking such steps as may be reasonably required to inform the other in the ordinary course, whether or not such other actually comes to know of it. A person receives a notice when it is duly delivered to him or at the place of his business. 20. If a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running no matter that the payee sent the notice on the correct address, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and he could escape from the legal consequences of S.138 of the Act. It must be borne in mind that court should not adopt in interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. 13. Again at paragraph 14 it is held: The offence under S.138 of the Act can be completed only with the concatenation of a number of acts. It must be borne in mind that court should not adopt in interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. 13. Again at paragraph 14 it is held: The offence under S.138 of the Act can be completed only with the concatenation of a number of acts. Following are that 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 14. In paragraph 24 it has been stated as follows: Indisputably all statues deserves their strict application, but while doing so the cardinal principles therefore cannot be lost sight of. A court derives a jurisdiction only when the cause of action arose within his jurisdiction. The same cannot be conferred by any act of omission or commission on the part of accused. A distinction must also be borne in mind between the ingredient of an offence and commission of a part of the offence. While issuance of a notice by the holder of a negotiable instrument is necessary, service thereof is also imperative. Only on a service of such notice and failure on the part of the accused to pay the demanded amount within a period of 15 days thereafter, commission of an offence completes. Giving of notice, therefore, cannot have any precedent over the service. It is only from that view of the matter in Dalmia Cement (Bharat) Ltd. V. Galaxy Traders & Agencies Ltd. (2001) 1 KLT 528 (SC) = (2001) 6 SCC 463 ) emphasis has been laid on service of notice 15. With the above discussion and stating that in cases of this nature to strike a balance between the right of the complainant and the right of the accused vis-a-vis the provisions of the Code of Criminal Procedure and rejecting the argument to apply the principle that the debtor must seek the creditor, it was held that the court at Delhi has no jurisdiction to try the case. 16. 16. Going by the law laid down in Harman case, we find that the Apex Court itself has clarified that mere giving of notice by a lawyer at a station other than that of the complainant would not confer jurisdiction on a court to try an offence under S.138 at a place where the lawyer resides. The ruling laid down by the learned single Judge in Harihara Puthra Sharma case (supra) as well as in Ahmedkutty Haji case (supra) is in tune with the law laid down by the Apex Court in Harman case. We find that the law laid down by the Apex Court in Bhaskarana case is clarified by the Apex Court in the latter decision in Harman Electronic case that rather than issuing of notice, service thereon is imperative and by the mere fact that a notice was caused at a particular station would not confer jurisdiction to a magistrate within whose jurisdiction the lawyer caused the notice. In the light of the rulings in Harman case, we answer the issuer referred to us in favour of the petitioners in Crl.R.P. and Crl.M.C. The law laid down in Harihara Puthra Sharma case and Ahmedkutty Hajis case (supra) is the correct law. 17. Since the complaint assailed in Crl.M.C. 551/08 filed at Pathanamthitta was only for the reason that the notice was issued by the lawyer from Pathanamthitta, the Chief Judicial Magistrate, Pathanamthitta would not get territorial jurisdiction to try the complaint. 18. In Crl.R.P.213/08, we notice that for want of territorial jurisdiction, the revision petitioner cannot succeed because of S.462 of the Code of Criminal Procedure, which reads as follows: Section 462. Proceedings in wrong place. No finding, sentence or order of any criminal court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice 19. A reading of the above provision would show that the revision petitioner, who had consented, though not volunteered, to face trial before the Chief Judicial Magistrate, Pathanamthitta and suffered conviction thereon, is not entitled to challenge the conviction and sentence on the ground that the trial was conducted at a wrong place. A reading of the above provision would show that the revision petitioner, who had consented, though not volunteered, to face trial before the Chief Judicial Magistrate, Pathanamthitta and suffered conviction thereon, is not entitled to challenge the conviction and sentence on the ground that the trial was conducted at a wrong place. It is not disputed that the Chief Judicial Magistrate, Pathanamthitta has inherent jurisdiction to try an offence under S.138 of the Negotiable Instruments Act. What was lacking is only the territorial jurisdiction. In the event the revision petitioner (accused) had a case that the Chief Judicial Magistrate, Pathanamthitta had no territorial jurisdiction to entertain the complaint and proceed with the trial, it should have been raised at the earliest. In the even an accused in a criminal case has got a dispute regarding the territorial jurisdiction of a magistrate, before whom he is prosecuted, it should have been raised at the earliest opportunity, at least before starting the trial. In the events he keeps silence, faces trial and suffers conviction, he is not entitled to raise the dispute later in appeal or in a revision so long as such trial had not caused any prejudice to him. There is nothing on record to show that such objection regarding the jurisdiction was raised by the revision petitioner before proceeding with the trial. There is no material to show that because of the trial in a wrong place, any prejudice was caused to him. In the above circumstances, in view of S.462 of the Code of Criminal Procedure, the revision petitioner is not entitled to assail the conviction and sentence thereon in revision against the judgment in appeal. Going by the judgment in appeal, we find that no dispute regarding jurisdiction was argued even in appeal. So, the challenge regarding jurisdiction in revision can no way be entertained. 20. An identical dispute had been to be consideration of a learned single Judge in Meenakshi v. Udayakumar ( 2007 (4) KLT 620 ) wherein it was held that an objection regarding territorial jurisdiction shall be raised at the earliest opportunity and if not raised, then it will not be entertained by Court. In Wipro Ltd. V. Sasi ( 2010 (3) KLT 4 ), in which order was delivered by one of us (P.S.G. (J)), also the same position was reiterated. In Wipro Ltd. V. Sasi ( 2010 (3) KLT 4 ), in which order was delivered by one of us (P.S.G. (J)), also the same position was reiterated. We find that the view adopted by the learned single Judge in Meenakshi case (supra) and Wipro (supra) case are correct and in tune with S.462 Cr.P.C. Hence, we hold that the revision petitioner in Crl.R.P.No.313/08 is not entitled to urge that contention in the revision stage. 21. It is also argued by the learned counsel for the petitioners that if the dictum laid down in Bhaskaran case (supra) which we quoted earlier is followed, it might appear that the complainant in a prosecution under S.138 of the Negotiable Instruments Act can present the cheque at a distant place of his choice and he can file the complaint before the court having jurisdiction over the territorial limits wherein the bank where the complainant had presented the cheque to forward the same to the drawer bank. According to the learned counsel, rather than the presentation of the cheque before the bank of the complainant having situated at the place of his choice, what is imperative is the dishonouring of the cheque and that prosecution under S.138 of the N.I. Act is maintainable only if the cheque is dishonoured for insufficiency of funds. According to the learned counsel, this Court in Santhosh Kumar v. Mohanan ( 2008 (3) KLT 461 ) held that the bank where the cheque presented by the complainant is situated at a different station is only an agent of the complainant and therefore, the court having jurisdiction over the area where the complainant agents are situated would not get jurisdiction to entertain a complaint for offence under S.138 of the Act. 22. In Santhosh Kumar v. Mohanan ( 2008 (3) KLT 461 ) the parties, Who are residing at Idukki transacted at Idukki. The cheque was presented in a bank at Ernakulam. Stating that the cheque was presented in a bank at Ernakulam, the complaint was filed before the Chief Judicial Magistrate, Ernakulam. Assailing the order taking cognizance by the Chief Judicial Magistrate, Ernakulam, petition under S.482 Cr.P.C. was filed. The cheque was presented in a bank at Ernakulam. Stating that the cheque was presented in a bank at Ernakulam, the complaint was filed before the Chief Judicial Magistrate, Ernakulam. Assailing the order taking cognizance by the Chief Judicial Magistrate, Ernakulam, petition under S.482 Cr.P.C. was filed. In that case, the learned single Judge of this Court, at para.10, held as follows: Hanging over of the cheque by the complainant to the agent of the complainant, the collecting bank cannot in law be reckoned as presentation of the cheque for encashment as to confer jurisdiction on the court at that venue to try the drawer of the cheque. It can in law be reckoned as only the conduct of the principal entrusting the cheque to his agent to present the same before the drawee bank. By such handing over of the cheque to his agent at whatever place it pleases the complainant, law cannot oblige the drawer of the cheque to go to distant places to defend the indictment against him. If venue No.2 mentioned in Bhaskaran v. Balan were given such a wide and expansive meaning, it will certainly amount to denial of the inalienable right of an indictee guarateed under Art.21 of the Constitution to reasonable opportunity to defend himself Allowing Crl.M.C., the Chief Judicial Magistrate, Ernakulam was ordered to transmit the records to the Judicial Magistrate of the First Class, Adimali. 23. Having gone through the dictum laid down in Santhosh Kumar case (supra) we find merit in the argument advanced. Suppose the complainant presented the cheque at a distant place and it reaches the drawer bank after the expiry of the period of six months, the drawer bank may dishonour the cheque as it is beyond the period of validity. Instances may also occur where the bank fails to forward the cheque at all and for that reason the complainant could not encash the cheque. In either case, the complainant is not entitled to prosecute the drawer. Therefore, we find that the presentation of the cheque before the drawer bank would not give rise to a cause of action. The presentation of the cheque before the drawer bank and dishonour thereon alone would give rise to a cause of action for prosecution. In either case, the complainant is not entitled to prosecute the drawer. Therefore, we find that the presentation of the cheque before the drawer bank would not give rise to a cause of action. The presentation of the cheque before the drawer bank and dishonour thereon alone would give rise to a cause of action for prosecution. In this view of the matter, the presentation of the cheque before the bank of the complainant is not relevant and would not amount to a cause of action. Whereas what is essential is the presentation of the cheque before the drawer bank. In the event the drawee bank is situated at a different station other than drawer bank and where the transaction had taken place, the magistrate having territorial jurisdiction over the area where the drawee bank is situated would not get territorial jurisdiction to entertain the complaint. The dictum laid down by the learned single Judge in Santhosh Kumar case (supra) is perfectly correct. The above interpretation regarding presentation of cheque to the bank is identical to the interpretation of ‘giving notice in writing to the drawer in Harman Electronics case (supra). Therefore, we find that the presentation of the cheque mentioned in Bhaskaran case, as we quoted earlier, is presentation before the drawer bank and not before the drawee bank. Therefore, it goes without saying that in such event the complainant cannot file prosecution in a court having territorial jurisdiction over an area where the drawee bank in which the cheque was presented for collection if such bank is situated at a place other than that of the drawer bank or at a place other than where transaction had taken place. The reference are answered accordingly. 24. In view of our finding, Crl.M.C.No.551/08 would stand allowed and we direct the Chief Judicial Magistrate, Pathanamthitta to transmit the case records in Annexure-I complaint in Crl.M.C.551 of 2008 to the Chief Judicial Magistrate, Thiruvananthapuram who shall be at liberty to proceed with the trial or to make over the case to the court having territorial jurisdiction over the area where any of the cause of action as clarified above had taken place or to any of the Magistrates under his jurisdiction. Crl.R.P. shall be placed before the learned single Judge for disposal of the same on other issues.