High Court of KeralaSingle Judge2011-04-06Crl.R.P allowed; impugned order set aside; comp...

FOCUZ AUTOMOBILES vs M. NAZARUDHIN (Crl.Rev.Pet. No. 2868 of 2009)

Case / Petition Number:Crl.Rev.Pet.No.2868 of 2009

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: M.C. Hari Rani
Judgment Date: 2011-04-06
Court Decision / Holding: Crl.R.P. is allowed; the impugned order of the Magistrate is set aside; the complaint in S.T. No. 740/2008 is restored to file, with directions to proceed with the hearing and to allow further evidence if required; the parties are to appear on 30/05/2011 to proceed.
Final Disposition: Crl.R.P allowed; impugned order set aside; complaint restored; matter to proceed with further evidence as required; appearance fixed for 30/05/2011

Parties to the Case

Appellants / Petitioners

FOCUZ AUTOMOBILES, a unit of Focuz Corporation Pvt. Ltd., represented by its Power of Attorney Holder Anand Kumar T.A., Legal Section In-Charge

Respondents

M. Nazarudhin
State of Kerala, represented by the Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Sri P. Gopakumaran Nair

Counsels for Respondents

• Adv. Sri Sanil Kumar for R1 Public Prosecutor
• Adv. Smt. Ane Paul (Public Prosecutor)

Case Synopsis & Summary

This is a criminal revision petition filed by the complainant (FOCUZ AUTOMOBILES) challenging an order of the Judicial First Class Magistrate, Ernakulam, which returned the complaint in S.T. No. 740/2008 for want of territorial jurisdiction under Section 138 of the Negotiable Instruments Act. The complainant alleges that a cheque issued by the accused was dishonoured, with the drawer failing to pay after due notice. The accused contends that the statutory notice was received at Kollam, his place of residence, rendering Kollam the proper forum for trial. The revision relies on the Supreme Court’s decision in Shamshad Begum v. Mohammed, which holds that the five acts constituting an offence under Section 138 NI Act (drafting the cheque, presenting it to the bank, returning it unpaid by the drawee, serving notice, and failure to pay within 15 days) need not all occur at the same locality; concatenation of these acts is sine qua non, even if performed in different places. Here, the disputed cheque was presented for collection at a Kochi bank in Ernakulam, within the jurisdiction of the Ernakulam court, and the complaint was filed there. The Magistrate’s order sending the matter elsewhere was held unsustainable; the Court set it aside and restored the complaint to the file, directing the parties to proceed with further evidence if required and to appear on 30/05/2011. The revision petition is allowed accordingly.

Provisions of Law Cited

Section 138 of the Negotiable Instruments ActSection 313 Cr.P.C.

Legal Doctrines & Maxims

Concatenation of the five acts is sine qua non for completion of the offence under Section 138 NI Act (Shamshad Begum v. Mohammed)
Five acts constituting an offence under Section 138 NI Act can be performed at different localities; not necessary that all acts occur at same locality

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner contends that the impugned order returning the complaint for lack of territorial jurisdiction is unsustainable in law. Relying on Shamshad Begum v. Mohammed (SC), it is argued that the five acts essential to completion of the offences under Section 138 NI Act can occur in different localities and that the concatenation of these acts is the sine qua non, so the Ernakulam court had jurisdiction since the cheque was presented for collection there and the complaint was filed there. The complainant seeks restoration of the complaint and continuation of proceedings with fair opportunity for both sides to lead further evidence, if required.

Contentions of Respondents

The respondents submit that the statutory notice was received by the accused at Kollam, his residence, which would ordinarily confer territorial jurisdiction on Kollam courts. They argue that, although the five acts may occur in different places, the locus of service of notice and the drawer’s location are decisive for jurisdiction. The lower court’s order correctly considered the matter, and the revision petition should be dismissed or transferred to the proper forum, i.e., Kollam, to preserve due process and avoid proceeding in a non-competent court.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Shamshad Begum v. Mohammed	2009(1) KLT 886 (SC)	Positive	Cited to support the proposition that the five acts constituting Section 138 NI Act can occur at different localities; concatenation is necessary for offence completion; the present judgment relies on this doctrine to examine territorial jurisdiction.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 6TH APRIL 2011 / 16TH CHAITHRA 1933 Crl.Rev.Pet.No. 2868 of 2009() ------------------------------ REVN. PETITIONER/COMPLAINANT IN ST.NO.740/08 OF JFCM-VI, EKM ----------------------------------------------------------- FOCUZ AUTOMOBILES, DOOR.NO.KC XL/1758, T.B.ROAD, SHENCOTAH ROAD, KOLLAM - 691 001 A UNIT OF FOCUZ CORPORATION PVT.LTD., FOCUZ TOWERS, EDAPPALLY, KOCHI-24, REP. BY ITS POWER OF ATTORNEY HOLDER ANAND KUMAR T.A., AGED 36 YEARS, S/O. ANIRUDHAN T.K.,LEGAL SECTION IN-CHARGE,FOCUZ CORPN BY ADV. SRI.P.GOPAKUMARAN NAIR IST RESPONDENT/ACCUSED IN ST.NO.740/08 OF JFCM-VI, EKM ------------------------------------------------------------------------ 1. M.NAZARUDHIN, AGED 47 YEARS, S/O.LATE MAINTHEEN KUNJU, PROPRIETOR, M/S.SHAN SHALU MOTORS, SHAN MANZIL, ASARIMUKKU, MYNAGAPPALLY P.O., KOLLAM - 690 519. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. - ADV. SRI.SANIL KUMAR FOR R1 PUBLIC PROSECUTOR SMT.ANEY PAUL THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **M.C.HARI RANI, J * * * * * * * * * * * *** Crl.R.P.No.2868 of 2009 ---------------------------------------Dated this the 6[th] day of April 2011 ## **O R D E R** The complainant in S.T.No.740/2008 of the Judicial First Class Magistrate Court VI, Ernakulam is the revision petitioner, who filed the complaint against the 1[st] respondent alleging offence under Section 138 of the Negotiable Instruments Act. The 1[st] respondent appeared on receipt of summons issued from the court and pleaded not guilty. Thereafter, evidence was let in by the complainant. PW1 was examined and Exts.P1 to P8 were marked. The 1[st] respondent was questioned under Section 313 Cr.P.C. No defence evidence was adduced and the case was posted for hearing to 18/5/2009. On that day, the learned counsel for the 1[st] respondent filed a petition challenging the territorial jurisdiction of the court to entertain the complaint. The revision petitioner filed objection. After hearing both counsel, the learned Magistrate, as per order dated 21/5/2009, returned the complaint to present before proper court on the finding that, that court has no jurisdiction to try the case. That Crl.R.P.No.2868/09 2 order has been challenged by the complainant/revision petitioner before this Court in this revision petition. 2. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor. 3. The petition was filed by the accused/1[st] respondent before the lower court with the contention that the said court has no jurisdiction to try the case for the reason that the statutory notice issued by the complainant before filing the complaint was received by the accused at Kollam, the place of residence of the accused. 4. The learned counsel for the revision petitioner relying on the decision of the Apex Court in **Shamshad Begum v. Mohammed [2009(1) KLT 886 (SC)]** submitted that the impugned order is unsustainable in law and it requires interference of this Court. In the said decision, it was held as follows: “Offence under Section 138 of the Act can be completed only with the concatenation of a number of acts. The acts which are components are as follows: (1) Drawing of the cheque; (2) Presentation of the cheque to the Crl.R.P.No.2868/09 3 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. It is not necessary that 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 five different localities. But concatenation of all the above five is sine qua non for the completion of the offence under S.138 of the Act.” 5. In the present case, the disputed cheque was presented for collection before the Corporation Bank, Veetteel Chambers, M.G.Road, Kochi 682 016, which is within the territorial jurisdiction of the Magistrate's court, Ernakulam and before that court the complaint was presented. 6. In the result, the impugned order is set aside and the complaint, S.T.No.740/2008 is restored back to file, if it is not taken back by the complainant till this date and the learned Magistrate is directed to proceed with the proceedings after giving further opportunity to both sides to adduce further evidence if so requested and to dispose the complaint in Crl.R.P.No.2868/09 4 accordance with law. 7. The complainant and accused shall appear before the learned Judicial First Class Magistrate Court-VI, Ernakulam on 30/05/2011. The learned counsel for the complainant/revision petitioner shall take steps, if so required, to ensure the appearance of the accused before that court. 8. This Crl.R.P is allowed accordingly. **(M.C.HARI RANI, JUDGE)** jsr // True Copy// PA to Judge Crl.R.P.No.2868/09 5 Crl.R.P.No.2868/09 6 Crl.R.P.No.2868/09 7 ## **M.C.HARI RANI, J** Crl.R.P.No.504 of 2001 ORDER 17[th] DAY OF JUNE 2001 Crl.R.P.No.2868/09 8 Crl.R.P.No.2868/09 9