Gaya Pharmaceuticals & Manoj Baker Fenn v Lyka Exports Ltd & State of Maharashtra & State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Basant
Judgment Date: 2007-02-01
Court Decision / Holding: Writ petition dismissed.
Final Disposition: Writ petition dismissed.

Parties to the Case

Appellants / Petitioners

M/S Gaya Pharmaceuticals
Mr. Manoj Baker Fenn

Respondents

Lyka Exports Ltd.
State of Maharashtra
State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri. M.P. Madhavankutty

Counsels for Respondents

• Sri. Gikku Jacob

Case Synopsis & Summary

The petitioners are the accused in a pending prosecution under Section 138 NI Act before the Metropolitan Magistrate, Bandra, Mumbai. They approach the Kerala High Court seeking relief under Article 226 on the ground that the four cheques should not be tried as a single offence, which allegedly violates Section 219 Cr.P.C. They contend that irregularities of a Mumbai court cannot confer jurisdiction on this court. The petition, though labeled under Article 226, is effectively a challenge to cognizance already taken and falls within Article 227 or Section 482 Cr.P.C, which this court declines to invoke. The learned judge relies on Musaraf Hussain v. Bhageeratha Engg.Ltd. to hold that powers under Article 227 and Section 482 Cr.P.C are not available here and that mere labeling cannot convert to a writ under Article 226. The Court then addresses territorial jurisdiction, invoking K. Bhaskaran v. Sankaran Vaidhyan Balan to state that the courts within the jurisdiction where a penal act occurs can entertain the case, and that the Maharashtra courts have territorial competence here. Finding no sufficient grounds to exercise extraordinary jurisdiction, the court dismisses the petition. The order thus ends the petitioners' challenge to the Mumbai prosecution.

Provisions of Law Cited

Section 138 of the Negotiable Instruments ActArticle 226 of the ConstitutionArticle 227 of the ConstitutionSection 482 Cr.P.CSection 219 Cr.P.C

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that four cheques in a single prosecution violate Section 219 Cr.P.C. and that an irregularity allegedly committed by a Mumbai court cannot confer jurisdiction on the Kerala High Court under Article 226. They seek quashing or relief under Article 226 to prevent the proceeding from continuing in Mumbai.

Contentions of Respondents

The respondents contend that the petition is not maintainable under Article 226 as cognizance has already been taken and the matter falls under other constitutional/Cr.P.C. remedies. They argue Maharashtra courts have territorial jurisdiction to entertain the complaint; and that invoking writ relief would be inappropriate given the circumstances.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Musaraf Hussain v. Bhageeratha Engg. Ltd.	2006(2)KLT 525 SC	Positive	Cited to support the proposition that powers under Article 227 and Section 482 Cr.P.C are not available to the Kerala High Court in this context.
K. Bhaskaran v. Sankaran Vaidhyan Balan	2006(1) KLT 552	Positive	Cited to assert the principle of territorial jurisdiction: courts within the jurisdiction where the offence occurred can entertain the case.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 1ST FEBRUARY 2007 / 12TH MAGHA 1928 WP(C).No. 8790 of 2005(U) ------------------------- PETITIONER: ----------------- 1. M/S. GAYA PHARMACEUTICALS, REPRESENTED BY ITS MANAGING PARTNER, MANOJ BAKER FENN, THADATHIL BUILDINGS, NEAR DHARSANA AUDITORIUM, SHASTRI ROAD,KOTTAYAM. 2. MR.MANOJ BAKER FENN, MANAGING PARTNER, THADATHIL BUILDINGS, NEAR DHARSANA AUDITORIUM, SHASTRI ROAD, KOTTAYAM. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENTS: ---------------------- 1. LYKA EXPORTS LTD., REPRESENTED BY MR.PRAMOD MANE, SECRETARIAL EXECUTIVE, 77 NEHRU ROAD, VILLE PARLE (EAST), MUMBAI-400 099. 2. STATE OF MAHARASHTRA, REPRESENTED BY HOME SECRETARY, MUMBAI-400 099, MAHARASHTRA. 3. STATE OF KERALA, REPRESENTED BY HOME SECRETARY, GOVERNMENT SECRETARIAT, TRIVANDRUM. BY GOVERNMENT PLEADER SRI.GIKKU JACOB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/02/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **APPENDIX IN WPC NO.8790 OF 2005** ## PETITIONER'S EXHIBITS: EXT.P1:TRUE COPY OF THE REPLY NOTICE SENT TO THE FIRST RESPONDENT BY THE PETITIONERS. EXT.P2:TRUE COPY OF THE COMPLAINT FILED BY THE FIRST RESPONDENT. [ TRUE COPY ] ## **R.BASANT, J** ## **----------------------** W.P.C.No.8790 of 2005 ---------------------------------------Dated this the 1[st] day of February 2007 ## **JUDGMENT** The petitioners are the accused in a prosecution under Section 138 of the Negotiable Instruments Act and that prosecution is pending before the Metropolitan Magistrate Court-12, Bandra, Mumbai, Maharashtra. Cognizance has been taken by the learned Magistrate. Processes have been issued against the petitioners. 2. That court functions within the jurisdiction of the High Court of Maharashtra. The petitioners have come to this court with the prayer that the proceedings initiated against him before that court may be quashed invoking the powers under Article 226 of the Constitution. 3. What is the ground? The short contention raised is that prosecution in respect of four cheques cannot be the subject matter of one prosecution as the same violates the mandate of Section 219 Cr.P.C. This, in short, is the contention raised. 4. That alleged irregularity committed by a court in Mumbai cannot, obviously, confer jurisdiction of this court to W.P.C.No.8790/05 2 invoke the powers under Article 226 of the Constitution. There is no dispute that powers under Section 227 of the Constitution or Section 482 Cr.P.C cannot be invoked but the learned counsel contends that in as much as the petitioners have come before this court by calling his petition as one under Article 226 of the Constitution, such jurisdiction would be available. 5. I am unable to agree. At the first instance, I must note that though the petition has come with the label 'petition under Article 226 of the Constitution', it is virtually and truly a petition under Article 227 of the Constitution/Section 482 Cr.P.C. Cognizance has already been taken by the learned Magistrate. In these circumstances, the decision in Musaraf Hussain v. Bhageeratha Engg.Ltd. [2006(2)KLT 525 SC] becomes relevant. Powers under Article 227 and Section 482 Cr.P.C are not available to this court. Merely because the petitioners have chosen to seek the relief under Article 226 of the Constitution, this court cannot assume jurisdiction. 6. Moreover, even if that court were within the territorial jurisdiction of this court, I find no reason whatsoever to invoke the powers under Article 226, 227 or Section 482 Cr.P.C. W.P.C.No.8790/05 3 7. At worst if the objections were found to be sustainable, the court will have to register two separate cases to satisfy the objection raised. Merely because such an alleged irregularity has been committed by the court, I find no reason to invoke the powers under any of the above three provisions. 8. There cannot possibly be a contention that the court at Maharashtra has no territorial jurisdiction to entertain the complaint. The decision in K.Bhaskaran v. Sankaran Vaidhyan Balan [2006(1) KLT 552] makes the position crystal clear. The courts within the jurisdiction of which any of the five events which, according to the above decision constitute a punishable offence, occur can entertain territorial jurisdiction. The contention that the courts at Maharashtra do not have jurisdiction cannot also, in these circumstances, succeed. 9. In the result, this writ petition is dismissed. ## **(R.BASANT, JUDGE)** jsr W.P.C.No.8790/05 4 W.P.C.No.8790/05 5 ## **R.BASANT, J** C.R.R.P.No. ORDER 21ST DAY OF JULY 2006