(2012) 286 KLR 218

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN 

FRIDAY, THE 14TH DAY OF DECEMBER 2012/23RD AGRAHAYANA 1934 

Crl.MC.No. 4115 of 2011 ( ) 

--------------------------- 

ST.2072/2010 of JUDICIAL FIRST CLASS MAGISTRATE -II, PERINTHALMANNA 

PETITIONER/RESPONDENT/COMPLAINANT : 

------------------------------------------------------------- 

MOHAMMED ABDUL KAREEM FAISAL, S/O. MOHAMMED HAJI, PUTHENGOTT, VADAKKEYVEETTIL KAPP P.O., THELAKKAD, PERINTHALMANNA TALUK MALAPPURAM DISTRICT, KERALA. 

BY ADVS.SRI.K.C.ELDHO SRI.M.REVIKRISHNAN 

RESPONDENTS/PETITIONER/ACCUSED : 

-------------------------------------------------------- 

1. BALAKRISHNA MENON, S/O. KESAV MENON, 5M/44 NIT, FARIDABAD, HARIYANA-121 001. 

2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 

R1 BY ADVS. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR R2 BY PUBLIC PROSECUTOR SRI.R. RANJITH 

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26/11/2012 ALONG WITH CRMC. 4275/2011,AND CONNECTED CASES, THE COURT ON 14-12-2012,PASSED THE FOLLOWING: BP Crl.MC.No. 4115 of 2011 ( ) 

APPENDIX 

PETITIONER'S EXHIBITS : 

• ANNEXURE A : A TRUE COPY OF THE PRIVATE COMPLAINT IN ST NO.2072/2010 OF THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE-II, PERINTHALMANNA, DTD.26.8.2010. 
• ANNEXURE B : A TRUE COPY OF THE ORDER DTD.30.5.2011 IN CRL.M.P.NO.2082/ 2011 IN ST NO.2072/2010 PASSED BY THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE-II, PERINTHALMANNA. 
• ANNEXURE C : A TRUE COPY OF THE LEAVE AND LICENCE AGREEMENT ENTERED INTO BETWEEN THE PETITIONER THROUGH HIS POWER OF ATTORNEY HOLDER AND THE 1ST RESPONDENT HEREIN DTD.12.5.2010. 

RESPONDENT'S EXHIBITS : 

• NIL. 

//TRUE COPY// P.A. TO JUDGE BP "C.R." 

S.S.SATHEESACHANDRAN, J. 

------------------------------------------------ 

Crl.M.C.Nos.4115, 4275, 4344, 4418, 4419, 4420, 4421 & 4422 of 2011 

------------------------------------------------- 

Dated this the 14th day of December, 2012 

Head Note:-

Negotiable Instrument Act, 1881 - Section 138 - Code of Criminal Procedure, 1973 - Section 177 - Territorial Jurisdiction - Place of residence of the complainant - Where notice sent from the place of residence of a complainant, and received by the accused, it has to be treated, unless there is an agreement to the contrary between the parties with respect to the place of payment of the sum covered by the cheque, as sufficient to confer jurisdiction on the court within which such residence is situate.  

Negotiable Instrument Act, 1881 - Section 138 - Code of Criminal Procedure, 1973 - Section 177 - Territorial Jurisdiction - Place of residence of the complainant - Office of Advocate - When a notice is issued by complainant through his advocate, and place of residence of the complainant and office of advocate, both are situate at the same place, but come within two courts at the same station owing to conferment of jurisdiction over police stations to such courts, which is made for administrative convenience, that alone, it cannot be given too much significance. 

Negotiable Instrument Act, 1881 - Section 138 - Code of Criminal Procedure, 1973 - Section 177 - Territorial Jurisdiction - Place of residence of the complainant - Specific averment has been made in the complaint that there was an agreement to pay the amount covered by the cheque at the place of residence of the complainant - Cause of action arising from notice issued, which after receipt was responded with a reply sent to the place of residence of the complainant, would also confer jurisdiction to the complainant to present his complaint before the court where his residence is situate. 

Negotiable Instrument Act, 1881 - Section 138 - Code of Criminal Procedure, 1973 - Section 177 - Issue of Notice - Territorial Jurisdiction - Question of - Issue of notice from the place of residence of the complainant and reply sent to that address can definitely be taken as one among the five acts giving rise to a cause of action for filing a complaint at the place where the residence of the complainant is situate. 

Negotiable Instrument Act, 1881 - Section 138 - Code of Criminal Procedure, 1973 - Section 177 - Issue of Notice - Territorial Jurisdiction - Question of - One of the components of the offence under Section 138 of the Act is issue of notice to the accused demanding payment of the cheque. Notice issued from the place of residence of the complainant, even if it is issued from an advocate's office falling within the jurisdiction of a different court, but of the same station, and it, after receipt, was responded with a reply sent to complaint, to the place of his residence, is sufficient to confer territorial jurisdiction on the magistrate to entertain the complaint. 

Negotiable Instrument Act, 1881 - Section 138 - Code of Criminal Procedure, 1973 - Section 177 - Issue of Notice - Residence of the complainant - Territorial Jurisdiction - Question of - Residence of the complainant is situate within the jurisdiction of the court, and absence of place where amount under cheque is to be paid in the agreement entered by parties, with the averments made in the complaint that it is payable at the  residence of the complainant, are justifiable circumstances, until the contrary is established, to hold that the court has jurisdiction to entertain the complaint. 

O R D E R 

Petitioner, common in all the above petitions, is the complainant in eight cheque cases, and common 1st respondent, the accused in all such cases. Challenge in the petition is against the common order passed by the magistrate in those cases upholding the challenge raised by the accused that the court before which the complaints were presented has no territorial jurisdiction to entertain them. Complainant, impeaching the correctness of that common order, has filed these petitions under Section 482 of the Code of Criminal Procedure {for short "the Code"}. 

2. I heard the counsel on both sides. 

3. Cheques covered by all the complaint cases have been issued by the accused towards the licence fee for the occupation/enjoyment of a building belonging to the complainant, situate in Gourgeon in Hariyana, is the case of the complainant. Cheques on presentation for encashment were dishonoured, and statutory notice issued was not responded with payment. Complaints were presented before the magistrate court within whose jurisdiction the complainant resided. No part of the cause of action arose within the jurisdiction of that magistrate and the leave and licence agreement executed over the building between the accused and power of attorney of the complainant does  not contain any term for payment of the amount covered by cheques at the place of residence of the complainant, was the contention raised by the accused to challenge the territorial jurisdiction of the magistrate to entertain the complaints. Learned magistrate, accepting that contention passed a common order for returning the complaints for presentation to the proper court. 

4. Short question emerging for consideration is whether the complaints presented before the magistrate court within which the complainant resided has jurisdiction to entertain and proceed with them. Before proceeding any further in examining the question it has to be pointed out that a specific averment has been made in the complaints that the residence of the complainant is the place where the payments covered by the cheques have to be made. That averment reads thus: 

"It is also agreed between the parties that, to avoid inconvenience of the complainant who is permanently residing at Kapp, Melattur, to come over to the premises to collect license fee and also to facilities payment by the accused, agreed to pay the license fee at the place of permanent residence of the complainant ..................................." 

Advocate notice intimating dishonour was sent from the place where his residence is situate is also the case of the complainant to show cause of action for presenting the complaint in the court before which they were filed. 

5. Leave and licence agreement over the building entered by the parties does not show that payment of the amount by cheques is to be made at the place of permanent residence of the complainant and the lawyer notice intimating dishonour and demand was issued by an advocate who is having his office situate within the jurisdiction of another court, though from the same station - Perinthalmanna -, and no cause of action other than those connected with presentation of dishonoured cheques and issue of notice is referred to in the complaint are some of the factors which weighed with learned magistrate to conclude that he has no territorial jurisdiction to entertain the complaints. Learned magistrate has also relied on Philipose P.M. v. P.C.Chandy and another {2009 (4) KHC 277}, Thressiamma v. State of Kerala {2010(4) KLT 598} and Herman Electronics (P) Ltd. v. National Panasonic India (P) Ltd. {2009(2) KLT 113[SC]} to base his conclusion that residence of complainant in the absence of any agreement between the parties that the amount covered by the cheques is payable at the place of residence will not confer jurisdiction to the court where his residence is situate to entertain the complaint over a dishonoured cheque. 

6. I find that the learned magistrate has not examined the question relating to the territorial jurisdiction with reference to the averments made in the complaint. The fact that the leave and licence agreement does not contain any provision where the amount covered by the cheques is payable is not relevant at this stage, but, may be, at later stage of trial. Where the complainant has asserted in his complaint that there was an agreement between the parties to pay the amount covered by the cheques at the place of residence that would confer on him an empowerment to file the complaint over the dishonoured cheque within the court where his residence is situate. The Apex Court in Bhaskaran v. Balan {1999(3) KLT 440 [SC]} dilating upon territorial jurisdiction in entertaining a complaint on a dishonoured cheque, referring to Sections 177, 178D and 179 of the Code, has held thus: 

"Under S.177 of the Code "every offence shall ordinarily be inquired into and tried in a court within whose jurisdiction it was committed." The locality where the bank (which dishonoured the cheque) is situated cannot be regarded as the sole criteria to determine the place of offence. It must be remembered that offence under S.138 would not be completed with the dishonour of the cheque. It attains completion only with the failure of the drawer of the cheque to pay the cheque amount within the expiry of 15 days mentioned in clause (c) of the proviso to S.138 of the Act. It is normally difficult to fix up a particular locality as the place of failure to pay the amount covered by the cheque. A place, for that purpose, would depend upon a variety of factors. It can either be at the place where the drawer resides or at the place where the payee resides or at the place where either of them carries on business. Hence, the difficulty to fix up any particular locality as the place of occurrence for the offence under S.138 of the Act." 

(underlining supplied) 

Emphasizing that question of territorial jurisdiction if raised over an offence under Section 138 of the Act has necessarily to be examined with the provisions under the Code relating to jurisdiction and explaining that concatenation of the acts required for constituting the offence is (i) drawing of the cheque, (2) presentation of the cheque to the bank, (3) returning of the cheque, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, and (5) failure of the drawer to make payment within 15 days of the receipt of the notice - the Apex Court has pointed out the significance and impact of Clause (d) of Section 178 of the Code, which stated thus: 

"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 such local areas". 

7. Principles explained, and applicable, to determine jurisdiction as stated in the decision have to be taken into account to resolve any question raised thereof. and applied. If we go by the decision in Bhaskaran's case{1999(3) KLT 440 [SC]} referred to above, the place of residence of the payee - complainant- would satisfy the requirement covered by Section 177 of the Code to confer jurisdiction on the court within which such residence is situate, to entertain the complaint. Though there has been no decision of the Apex Court taking a different view that residence of the complainant by itself would not give territorial jurisdiction for presentation of a complaint a later decision viz., Herman Electronic's case {2009(2) KLT 113 [SC]} in which reference was made to Bhaskaran's case{1999(3) KLT 440 [SC]} as well, has been canvassed by the counsel for the accused that residence of the complainant will not confer jurisdiction in a cheque case. Learned magistrate, it is seen, has also placed reliance on the aforesaid decision to hold so. What was considered in Herman Electronic's case was only whether the issue of notice by itself would give rise to a cause of action, and it was held that it would not. Even on that question, in the present case, complainant is on a better footing, and, in fact, the question of territorial jurisdiction with reference to his residence, on the admitted facts and circumstances presented in the case, is not called for. A notice was issued by him from his place of residence on dishonour of the cheques demanding the sum to the accused. True, issue of notice unconnected with transaction or residence will not confer jurisdiction. Admittedly, that notice issued was received by the accused, who responded with a reply. Whatever be his contentions thereof when a notice issued is received, that definitely is one among the components sufficient enough to confer jurisdiction. It is not the place where the notice is received, but, the place from which notice is issued, on acceptance of the notice, form the component, one among the five acts constituting the offence of Section 138 of the Act. What has been stated in the above decision is only that mere issue of notice will not confer jurisdiction. Where notice is issued from a different place unconnected with the transaction and residence of the complainant, its receipt by accused, cannot be given decisive value in determining jurisdiction. In such a case, as pointed out in Herman Electronic's case, it may demand further examination taking note that it is necessary to strike a balance between the right of a complainant and a right of an accused vis-a-vis the provisions of the Code. However, where notice has been sent from the place of residence of a complainant, and it has been received by the accused, no doubt, it has to be treated, unless there is an agreement to the contrary between the parties with respect to the place of payment of the sum covered by the cheque, as sufficient to confer jurisdiction on the court within which such residence is situate. I do not find any merit in the reasoning of the magistrate that since notice was issued from the office of an advocate situate within the jurisdiction of another magistrate, though in the same station, (Magistrate Court No.II of Perinthalmanna) such notice issued cannot be treated as sufficient to confer jurisdiction. When a notice is issued by complainant through his advocate, and place of residence of the complainant and office of advocate, both are situate at the same place, but come within two courts at the same station owing to conferment of jurisdiction over police stations to such courts, which is made for administrative convenience, that alone, it cannot be given too much significance. 

8. With respect to issue of notice and receipt also, in the present case, complaint presented before the magistrate lend enough support to the complainant to show that the complaint was filed before a court having jurisdiction to entertain it. The decision rendered in Thressiamma's case {2010(4) KLT 598} referred to and relied by the magistrate, dealt with the questions relating to issue of notice and not with question of residence of the complainant. That has no application to the present case. Similarly in Philipose' case {2009 (4) KHC 277} though the question of residence of the complainant in determining territorial jurisdiction was considered, in that case, the complaint did not contain any averment that payment was to be made at the place of residence of the complainant, which is not so in the present case. That was a case where mere residence of the complainant was canvassed to urge that, that alone is sufficient to confer jurisdiction. In the present case, specific averment has been made in the complaint that there was an agreement to pay the amount covered by the cheque at the place of residence of the complainant. Further more, I have found that cause of action arising from notice issued, which after receipt was responded with a reply sent to the place of residence of the complainant, would also confer jurisdiction to the complainant to present his complaint before the court where his residence is situate. On the question of territorial jurisdiction in relation to residence of the complainant, relying upon Bhaskaran's case {1999(3) KLT 440 [SC]}, the Apex Court in Shamshad Begam v. Muhammed {2009(1) KLT 886} has held that issue of notice from the place of residence of the complainant and reply sent to that address can definitely be taken as one among the five acts giving rise to a cause of action for filing a complaint at the place where the residence of the complainant is situate. One of the components of the offence under Section 138 of the Act is issue of notice to the accused demanding payment of the cheque. Notice issued from the place of residence of the complainant, even if it is issued from an advocate's office falling within the jurisdiction of a different court, but of the same station, and it, after receipt, was responded with a reply sent to complaint, to the place of his residence, is sufficient to confer territorial jurisdiction on the magistrate to entertain the complaint. Coupled with the above, residence of the complainant is situate within the jurisdiction of the court, and absence of place where amount under cheque is to be paid in the agreement entered by parties, with the averments made in the complaint that it is payable at the  residence of the complainant, are justifiable circumstances, until the contrary is established, to hold that the court has jurisdiction to entertain the complaint. 

Common order passed by the magistrate holding that he has no territorial jurisdiction to entertain the complaints is set aside, and he is directed to take back the complaints and dispose them, in accordance with law. 

Sd/- (S.S.SATHEESACHANDRAN) JUDGE 

sk/- //true copy//