Labour India Publications Pvt. Ltd. v. Santosh Kumar J. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 9TH DAY OF DECEMBER 2014/18TH AGRAHAYANA, 1936** ## **Crl.Rev.Pet.No. 2106 of 2014 ()** **------------------------------------AGAINST THE ORDER IN ST 914/2011 of J.M.F.C.,PALA, DATED 07-11-2014.** **REVISION PETITIONER(S): ------------------------------------** **LABOUR INDIA PUBLICATIONS PVT. LTD., MARANGATTUPILLY, PREVIOUSLY REPRESENTED BY P.J. CHACKO, VARACHERIL, AYARKKUNAM.** **PRESENTLY REPRESENTED BY A.S. KRISHNA PILLAI, ANNAVI VEETTIL (H), ANAKALLU P.O., KANJIRAPPALLY, KOTTAYAM (DIST), AS PER BOARD RESOLUTION DATED 29.11.2014.** **BY ADVS.SRI.SEBASTIAN PAUL SRI.S.VIJAYAKUMAR (NALLOOR) SMT.LIZAMMA AUGUSTINE SRI.RON BASTIAN SMT.SABEENA P. ISMAIL SRI.BEN TOM** ## **RESPONDENT(S):** **-------------------------** **1. SANTHOSH KUMAR J., S/O. JANARDHANAN PILLAI, SURESH MANDIRAM, CHOZHIYAKODE, KULATHUPUZHA, PATHANAPURAM, KOLLAM DISTRICT-691 310.** **2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31.** **R2 BY PUBLIC PROSECUTOR SRI. N. SURESH** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09-12-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **:2:** ## _**Crl.Rev.Pet.No. 2106 of 2014**_ ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **:** **ANNEXURE A1 : CERTIFIED COPYOFTHE COMPLAINT FILED BEFORE THE JFCM, PALA. ANNEXURE A2 : CERTIFIED COPY OF THE ORDER DATED 07.11.2014 PASSED BY THE JFCM, PALA.** **RESPONDENT'S EXHIBITS :** **NIL** _// True Copy//_ ss _P.A. to Judge_ ## **K. RAMAKRISHNAN, J.** -----------------------------------------------------------------Crl. R.P. No.2106 of 2014 --------------------------------------------------------------------Dated this the 9[th] day of December, 2014 ## **O R D E R** Complainant in S.T.No.914/2011 on the file of the Judicial First Class Magistrate Court, Pala, is the revision petitioner herein. The complainant herein filed a private complaint under Section 138 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code. After preliminary enquiry, the learned magistrate has taken cognisance of the case for the offence under Section 138 of the Negotiable Instruments Act only. 2. The allegation in the complaint was that, the entire transaction had taken place within the jurisdiction of Judicial First Class Magistrate Court, Pala, and the cheque was drawn on State Bank of India, Ghaziabad Branch, and it was dishonoured by that bank and notice was issued and the amount was not paid and this was done with a dishonest intention to cheat the complainant and according to the Crl. R.P. No.2106 of 2014 2 complainant he had committed the offence under Section 420 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act. But case was taken on file only for the offence under Section 138 of the Negotiable Instruments Act alone. But the case was filed in the year 2011 and service was not complete and summons on the accused could not be served. Now relying on the decision reported in **Dashrath Rup Singh Rathod v. State of Maharashtra and Another [(2014(3) KHC 362 (SC)]** , the magistrate has returned the complaint after 3[1/2] years to presented before the court, within whose jurisdiction the drawee bank is situated, that order is being challenged by the revision petitioner by filing this revision. 3. Considering the scope of enquiry, this court felt that, the revision can be disposed at the admission stage itself, after hearing the counsel for the revision petitioner and learned Public Prosecutor, dispensing with notice to the 2[nd] respondent, as his presence could not be Crl. R.P. No.2106 of 2014 3 procured in the lower court itself so far and it will only delay the disposal of the case. 4. The counsel for the revision petitioner submitted that, though the allegations in the complaint will go to show that, apart from the offence under Section 138 of the Act and offence under Section 420 of the Indian penal Code was also committed, but that was not taken cognisance by the court below and during the course of enquiry, if it is found that, the offences other than the offence under Section 138 of the Negotiable Instruments Act has committed, court is at liberty to take cognisance for that offence also. So under the circumstances, the return of complaint ordered by the court below is illegal relying on the decision of the Supreme Court in Rathod's case (supra) and it cannot be blindly applied and court will have to analyse the allegations and then applied the case law. Further it is an 'at par' cheque, which has been given and it was dishonoured from Ghaziayad branch. So the court Crl. R.P. No.2106 of 2014 4 below was not justified in returning the complaint, for presentation before the proper court. 5. Learned Public Prosecutor submitted that, in view of the authoritative pronouncement on this subject by the Hon'ble Supreme Court, the order passed by the court below is perfectly justifiable. 6. It is an admitted fact that, the complaint was filed by the complainant, alleging offences under Section 420 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act, but court has taken cognisance of the case only for the offence under Section 138 of the Act and that has not been challenged by the revision petitioner so far. It is also an admitted fact that, the cheque was drawn on State Bank of India, Ghaziabad branch. It is also admitted by the counsel for the revision petitioner that, it was dishonored from that branch. Earlier by virtue of conflicting decisions of the Hon'ble Supreme Court, in respect of matters concerning to jurisdiction of court to 5 Crl. R.P. No.2106 of 2014 entertain a complaint under Section 138 of the Act, courts in India were following those decisions, had taken cognisance of the cases, even though the cheque was presented in a collection bank and transaction had taken place within the jurisdiction of the magistrate court etc., But the larger bench of Hon'ble Supreme Court had considered all these aspects in **Dashrath Rup Singh Rathod v. State of Maharashtra and Another [(2014(3) KHC 362 (SC)]** and held that, the only court which has jurisdiction to entertain the complaint, is the court within whose jurisdiction drawee bank is situated, as the dishonour is being done from that branch. But the Bombay High Court in the decision reported in **Ramanbhai Mathurbhai Patel v. State of Maharashtra and Another [2013(3) KHC 847 (Bom.)]** , took a view that, if the cheque is 'at par' cheque, then all the banks before whom it is presented and it will be dishonoured from that branch and so the branch at which it is presented can also Crl. R.P. No.2106 of 2014 6 be treated as a bank dishonouring the cheque giving power to the court within whose jurisdiction that bank is situated to entertain the complaint. But that dictum was stayed by the Supreme Court in petitions for Special Leave to Appeal (Crl.) No. 7251/2014 **Ramanbhai Mathurbhai Patel v. State of Maharashtra and Another [2013(3) KHC 847 (Bom.)].** So it cannot be said that, the dictum is in force now. So in view of the Supreme Court decision, especially when the evidence of this case has not been started, the court below cannot be said at fault for return the complaint for presentation before the proper court, as there is a specific direction issued by the Hon'ble Supreme Court in paragraph 20 of that judgment in this regard. So the return of the complaint ordered by the court below cannot be said to be illegal or unsustainable, which warrants interference at the hands of this court. But however, if there is any remedy available for the petitioner for challenging the order of not taking cognisance under Section 420 of the Indian 7 Crl. R.P. No.2106 of 2014 penal Code, that will not be affected by this order. So one month time more from today is given to the revision petitioner for presentation before the proper court, as provided in the decision in Dashrath Rup Singh Rathod's case (supra) and if the representation is made before the Ghaziabad court, within the extended period by this court, then it will be deemed to have been filed within time. With the above observation and direction, the revision petition is disposed of. Hand over a copy of the order to the counsel for the petitioner immediately as per the terms. Sd/- ## **K. Ramakrishnan, Judge** // True Copy // P.A. to Judge ss