Jose K. Antony v. V.K. UMMER and State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN** **MONDAY, THE 31ST OCTOBER 2011 / 9TH KARTHIKA 1933** **CRL.A.No. 38 of 2005(A)** **----------------------------------** ## **CC.211/2001 of JUDL.MAGISTRATE OF FIRST CLASS-II, KANJIRAPPALLY.** **....................** ## **APPELLANT(S): COMPLAINANT** **---------------------------------------------** **JOSE K.ANTONY, AGED 42 YEARS, S/O.K.M.ANTONY, KAKKANATU HOUSE, KAPPADU P.O., KANJIRAPPALLY-686 508.** **BY ADV. SRI.H.B.SHENOY** **SRI.B.ASHOK SHENOY** ## **RESPONDENT(S): ACCUSED AND STATE** **----------------------------------------------------------** **1. V.K.UMMER, VANNERIYALAPPIL HOUSE, KADAVALLOOR P.O., KUNNAMKULAM, THRISSUR DISTRICT.** **2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.** **PUBLIC PROSECUTOR SMT.S.HYMA** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 31/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **N.K.BALAKRISHNAN, J.** ## **---------------------------------------------------Crl.A.No.38 of 2005** ## **---------------------------------------------------Dated this the 31st day of October, 2011** ## **Judgment** The complainant in CC No.211 of 2001 on the file of JFCM Court-II, Kanjirappally is the appellant. The complaint was filed by him against the first respondent (the accused therein) alleging offence under Section 138 of the N.I.Act and also under Section 420 IPC. The gist of the complaint is that the accused borrowed a sum of Rs.1,80,000/- from the appellant. That transaction took place at Soudi Arabia. To discharge that liability Ext.P3 cheque was signed and issued by the accused at Soudi Arabia. The cheque dated 13.11.2000 was drawn on S.B.I., P.B.Division, Kunnamkulam Branch. It was signed and given by him on 5.1.2000. That means, Ext.P3 is a post dated cheque. In paragraph 1 of the complaint itself it was stated by the complainant that the accused agreed to repay the amount within one year and it was based on that assurance, Ext.P3 cheque was issued. Further in paragraph 2 of the complaint, it was stated by the complainant: “The accused when he gave the cheque made to believe the complainant that the cheque will be Crl.A.38/05 2 honoured when the cheque is presented before the bank. The cheque was given by the accused to the complainant on 5.1.2000 at K.S.A.” It was further stated by the complainant that Ext.P3 was presented by him through S.B.T., Manimala Branch and it was returned dishonoured for the reason - 'funds insufficient' and also on the ground that his 'signature differs'. A notice was sent by the complainant to the accused intimating the factum of dishonour. It was further alleged by the complainant in paragraph 3 of the complaint: “The accused deliberately put the signature differently to cheat the complainant. The accused gave the cheque to the complainant knowing fully well that it will be dishonoured.” After recording the sworn statement of the complainant, the learned Magistrate took cognizance of the offence under Section 420 IPC. 2. Since the case was proceeded as a warrant case instituted on a private complaint, P.W.1 to P.W.3 were examined and as the court found materials to frame charge against the accused, charge was framed against the accused under Section Crl.A.38/05 3 420 IPC. The witnesses were recalled and cross-examined. After examining the accused under Section 313, the learned Magistrate disposed of the case acquitting the accused. 3. The learned Magistrate found that there are no sufficient pleading in the complaint to attract the offence under Section 420 IPC. The other ground stated by the learned Magistrate is that no sanction from the Central Government was obtained under Section 188 Cr.P.C. 4. Heard the learned counsel for the complainant/appellant. This appeal was filed seeking special leave. Special leave was granted by this court earlier. Notice was issued to the accused/first respondent. Though he was served with notice in this appeal, he did not enter appearance. The learned counsel for the appellant would submit that the learned Magistrate failed to go through the specific allegations made in the complaint with regard to the dishonest intention which the accused had at the time of issuance of the cheque. The fact that Ext.P3 was signed by the accused was proved through the evidence given by P.W.2 and also by P.W.3, an independent witness who swore before court that he had actually witnessed the accused signing and handing over Ext.P3 to the complainant. That transaction took Crl.A.38/05 4 place at Soudi Arabia. But the cheque was drawn on S.B.I., Kunnamkulam Branch. The first ground on which the verdict of acquittal was given by the learned Magistrate, according to the learned counsel for the appellant, cannot be accepted at all. The ingredients to attract the offence under Section 420 IPC are seen narrated in the complaint. It will show that there was a deliberate attempt on the part of the accused to cheat the complainant by putting a different signature than what was the signature furnished by him to the Bank when he opened the account. The further statement in the complaint that the accused gave the cheque knowing full well that it will be dishonoured because the signature was different has also been projected by the learned counsel for the complainant to fortify his submission that there was dishonest intention at the very inception so that the finding entered by the learned Magistrate that there are no sufficient averments in the complaint cannot be countenanced at all. The learned counsel would also draw the attention of the court to the sworn statement given by the complainant where also these allegations were reiterated. Hence, I perfectly agree with the learned counsel for the complainant that there are sufficient averments in the complaint to attract the offence under Section Crl.A.38/05 5 420 IPC. The learned counsel has also drawn the attention of the court to the evidence given by P.W.2 and P.W.3 regarding the execution of the cheque by the accused. The evidence given by P.W.2 with regard to the dishonest intention of the cheque has also been highlighted by the learned counsel. Therefore, the first ground stated by the learned Magistrate is unsustainable. 5. The main other ground that has been putforward by the court below is the defence raised by the accused relying upon Section 188 of the Cr.P.C. Section 188 of the Cr.P.C. reads as follows: “188. Offence committed outside India. - When an offence is committed outside India- (a) by a citizen of India, whether on the high seas or elsewhere; or (b) by a person, not being such citizen, on any ship or aircraft registered in India, he may be dealt with in respect of such offence as if it had been committed at any place within Indi at which me may be found: ## Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence Crl.A.38/05 6 shall be inquired into or tried in India except with the previous sanction of the Central Government.” The learned counsel for the appellant would submit that the proviso to Section 188 would have application only if the offence was committed outside India. Here, according to the learned counsel, except the fact that money transaction had taken place in Soudi Arabia and that the cheque was also issued from there, it cannot be said that the entire transaction took place outside India so as to attract the necessity of sanction by the Central Government under Section 188 of the Cr.P.C. The learned counsel points out that on going through Section 179 of the Code, it can be found that part of the cause of action in this case did arise within India. In other words, the consequence of the issuance of the cheque did actually arise within India. Since the cheque was drawn on a Bank in India and since the cheque would have been encashed only through that Bank in India, the resultant consequence of the issuance of the cheque could be had only in India. Even if the said cheque was presented through another Bank in Soudi Arabia, the cheque could be honoured or dishonoured only if it comes to the drawee Bank in India. As such the consequence of the act complained of arose within the Crl.A.38/05 7 jurisdiction of the court at Kanjirappally. If part of the cause of action arose within the jurisdiction of JFCM Court, Kanjirappally, the complainant would be perfectly justified in presenting the complaint before the JFCM Court, Kanjirappally. If part of the transaction arose within the jurisdiction of that court, then it cannot be said that the offence was committed outside India so as to require sanction under Section 188 of the Code for taking cognizance of the offence. These aspects were not considered by the learned Magistrate. The learned counsel has also relied upon the decision of the Delhi High Court in **Vishwanatha Tantri v. State of Delhi** (2008 KHC 5463). The above decision has been cited by the learned counsel only to support his argument that if part of the cause of action arose within the jurisdiction of JFCM Court, Kanjirappally, then that court also gets jurisdiction to take cognizance of the offence. In the decision cited supra it was held by the Delhi High Court: “The provisions of S.179 and 180 are wide enough to enable cognizance to be taken either by a Court where anything was done within the local limits of its jurisdiction, or a Court, where the consequence ensued. And if the offence was completed by the act Crl.A.38/05 8 followed by the consequence, then the Court where the act was committed and the Court where the consequence ensued will both have jurisdiction to try the offence. It has been laid down in, AIR 1924 All 77: 1923 (24) Cri.LJ 929 that - “the offence of cheating may be tried either at the place where the cheating was committed (where the accused resided) or at the place where the loss ensued to the complainant i.e. where the complainant resides or his firm is situated.” ” Since the consequence of the act complained of arose within the jurisdiction of JFCM Court, Kanjirappally, the findiang of the learned Magistrate that sanction as required under Section 188 of the Cr.P.C. is a must cannot be accepted. Therefore, that finding is also set aside. 6. The learned counsel would submit that the learned Magistrate could have as well taken cognizance of the offence under Section 138 of the N.I.Act also since all the statutory formalities were complied with to attract the offence under Section 188 of the N.I.Act. In particular, the learned counsel would submit that the fact that Ext.P3 was signed and issued by Crl.A.38/05 9 the accused was proved through the evidence of P.Ws.2 and 3. The inconsistent plea taken by the accused has also been banked upon by the learned counsel in support of his argument that there was practically no denial of execution of Ext.P3 cheque. Even otherwise, the evidence given by P.Ws.2 and 3 would prove that Ext.P3 was signed by the accused and handed over to the complainant. Irrespective of the fact that there was slight difference in the signature put up by the accused, that will not absolve his liability under Section 138 of the N.I.Act. If viewed in that line, the offence under Section 138 of the N.I.Act would also be attracted. But the contention that Section 420 IPC and also Section 138 of the N.I.Act would simultaneously be attracted cannot be countenanced because there is only one offending act, i.e., issuance of the cheque. Of course, this argument has been raised by the learned counsel only as the last limb of his argument. It has been found that there are materials in the complaint to attract Section 420 IPC. The question of sanction under Section 188 Cr.P.C. is not attracted in view of the fact that part of the cause of action for the complaint arose within the jurisdiction of JFCM Court, Kanjirappally. Hence, the verdict of acquittal passed by the learned Magistrate is liable to be set Crl.A.38/05 10 aside. The fact that JFCM Court, Kanjirappally is otherwise having territorial jurisdiction was not disputed by the accused before the trial court. The attack was made based only on Section 188 of the Cr.P.C. which has been now found against. 7. In the light of what is stated above, this appeal is allowed. The verdict of acquittal passed by the court below is set aside. The learned Magistrate will take the case back to file and will dispose of the matter on merits in the light of what has been stated above. The parties will appear before JFCM Court-II, Kanjirappally on 25.11.2011. ## **N.K.BALAKRISHNAN, JUDGE.** srd Crl.A.38/05 11 Crl.A.38/05 12