Grandeur Homes & Partners Firm v. State of Kerala through Public Prosecutor and Chandrasekhara Menon

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN** **TUESDAY, THE 25TH OCTOBER 2011 / 3RD KARTHIKA 1933** **Crl.MC.No. 3491 of 2011() -------------------------** **CRMP.1384/2011 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O),ERNAKULAM** **....................** ## **PETITIONER//COMPLAINANT.** **----------------------------------------** **M/S.GRANDEUR HOMES & PARTNERSHIP FRIM, REPRESENTED BY MANAGING PARTNER SANIL KUMAR, KANISSERY, G-412, ARCHANA, PANAMPALLY NAGAR P.O., ERNAKULAM.** **BY ADV. SRI.P.K.RAGHAVAN** ## **RESPONDENT(S)/ACCUSED.** **-----------------------------------------** **1. STATE OF KEREALA THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. CHANDRASEKHARA MENON,** **PROPRIEOTR OF M/S.SATERI MARKETING SERVICES, B-03, GANESH PALACE CHS, CHITTARANJANDAS ROAD, DOMBIVILI (EAST) MUMBARI-421 201.** **BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **VK** **Crl.MC.No. 3491 of 2011() -------------------------------------** ## **PETITIONER'S EXHIBITS** **--------------------------------** ## **APPENDIX** **----------------** **ANNEXURE A1. COPY OF PRIVATE COMPLAINT FILED BY THE PETITIONER IN CMP NO1384/2011 BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT E.O., ERNAKULAM** **ANNEXURE A2. CERTIFIED COPY of the ORDER DATED 13.5.2011 OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT E.O., ERNAKULM.** **/ TRUE COPY /** **P.A. TO JUDGE** **VK** ## **N.K. BALAKRISHNAN,J. -----------------------------------Crl.M.C. No. 3491 of 2011 -----------------------------------------Dated this the 25th day of October, 2011.** ## **O R D E R** The complainant in a complaint fled under Section 138 r/w Section 142 of N.I. Act is the petitioner. The learned Additional CJM (EO) Ernakulam returned the complaint for presentation before the proper court having jurisdiction. It was found by the learned Magistrate that presentation of the cheque before th payee's bank will not give rise to a cause of action for the offence under Section 138 of the N.I. Act. Hence the learned Magistrate found that the Additional CJM (EO), Ernakulam has no jurisdiction to entertain the complaint. 2. The learned counsel for the complainant/petitioner submits that the view taken by the learned Magistrate is incorrect. In the complaint, it is mentioned that the complainant is having its business concern in Ernakulam. In para 2 of the complaint, it was stated that towards the discharge of the liability of Rs.1,84,000/- (Rupees One lakh **Crl.M.C. No. 3491 of 2011** -: 2 :- eight four thousand only) due to the complainant the accused who is having his business at Mumbai issued two cheques drawn on Federal Bank , Mumbai Dombivili branch to the complainant. In Para 3, it was stated that the complainant presented those two cheques through Federal Bank, Panambilly Nagar presented for encashment and both cheques were dis-honoured with the remarks “exceeds arrangement”. Thereafter, the complainant caused to issue the statutory notice. It was received by the accused evidently at Mumbai and in spite of the notice the accused failed to pay the amount. As can be seen from para 7, the Additional CJM (EO) Ernakulam has got jurisdiction to take cognizance of the offence since the cheque was presented for encashment through Federal Bank, Panambilly Nagar and dis-honour memo was issued by that bank which is within the limits of Ernakulam Town South Police Station. The learned counsel for the petitioner submits that going by the allegations, it can be seen that the complainant is ## **Crl.M.C. No. 3491 of 2011** -: 3 :- residing within the jurisdiction of the Additional CJM Court, Ernakulam. The cheque in question was presented before the bank at Ernakulam and the dis-honour memo was also received from that bank at Ernakulam and thereafter statutory notice was also caused to be sent at Ernakulam and there is nothing to show that the transaction took place at Mumbai or at any other places so as to contend that Additonal CJM, Ernakulam has no territorial jurisdiction to take cognizance of the offence. The decision of Supreme Court in **Trisuns Chemical Industry v. Rajesh Agarwal reported in AIR 1999 S.C.3499** has no application to the facts of the present case. In **Bhaskaran v. Sankaran Vaidyan Balan (1999(3) KLT 440 (SC)** , it was held by the Apex Court: “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 the cheque paid by the drawee bank and failure of the drawer to make payment within the time stipulated” ## **Crl.M.C. No. 3491 of 2011** -: 4 :- ## In **Ahemedkutty v. State of Kerala (2007 (1) KLT** ## **68** , it was held by this court: “mere sending of notice from the office of a 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.” ## In **Shamshad Begum v. B,. Mohammed (2009 (1)** **KLT 886 (SC)** , it was found that the transactions occurred at Bangalore. The parties were residing at Bangalore. Notice and reply notice were caused from Mangalore. Relying upon the ratio in **Bhaskaran's** case, it was held that the court at Mangalore had the jurisdiction to try the case. In **Harman Electrics (P) Ltd. v. National Panasonic India (P)Ltd. (2009(2) KLT 113 (SC)** , the transaction occurred at Chandigarh and notice was caused to be sent by a lawyer residing at Delhi holding that the court at Delhi had no jurisdiction to try the case. 3. There can be no doubt that mere giving of notice by a lawyer sitting in his place or other than that of the ## **Crl.M.C. No. 3491 of 2011** -: 5 :- complainant would not confer jurisdiction on the court where the lawyer's office is situated. But here the complainant is having his business concern at Erakulam. The liability arose in respect of the transactions which the complainant and the accused had and it was to discharge the liability, the cheques were issued by the accused. Those cheques were presented for collection at Erakulam, through the payee's bank and dis-honour memo was also issued through that bank at Ernakulam. The notice was also caused to be sent from Ernakulam. Therefore, except the fact that the accused is having his place of business at Mumbai, there is nothing to show that the Court at Ernakulam has no territorial jurisdiction. Going by the averements as it now stands, it cannot be said that the court at Ernakulam had no jurisdiction to try the case. Therefore, the order passed by the learned Magistrate returning the complaint holding that that court had no jurisdiction to try the case cannot be sustained. The impugned order is set **Crl.M.C. No. 3491 of 2011** -: 6 :- aside. The learned Additional CJM Ernakulam will take back the complaint if it had been returned and will proceed further in accordance with law. However, it is made clear that when the accused appears and canvasses for the position that the learned Magistrate had no territorial jurisdiction, it is open to the learned Magistrate to hear both parties again and to pass orders afresh. ## **N.K. BALAKRISHNAN, JUDGE** smvd