Mariyamma Anto v. State of Kerala and M/s Samkit Finance Pvt Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** ## **WEDNESDAY, THE 12TH DAY OF SEPTEMBER 2012/21ST BHADRA 1934** ## **OP(Crl.).No. 2569 of 2012 (Q)** **----------------------------COMPLAINT NO.211/2009 OF MAGISTRATE OF 1ST CLASS JODPUR DISTRICT -------------------------------** **PETITIONER(S):** - **----------------------------** **MARIYAMMA ANTO, CHANGATTU HOUSE, SKYLINE ROSEMOUNT VILLAS AND APARTMENTS, KUNJANBAVA ROAD, VYTTILA, KOCHI- 682 019** **BY ADV. SRI.T.RAVIKUMAR** **RESPONDENT(S):** **------------------------------** **1. STATE OF KERALA, RERPESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **2. M/S SAMKIT FINANCE PVT LTD, REGD. OFFICE, 62/2, BAGAT KOTI, JODPUR REPRESENTED BY GORKRAM, S/O S.R. PAMWAR, DIRECTOR.** ## **3. M/S SAMKIT FINANCE PVT LTD,** **ABOVE TADKA RAJASTHANI RESTAURANT, CANNONSHED ROAD, OPP. ERNAKULAM MAIN BOAT JETTY, ERNAKULAM, REPRESENTED BY ITS FINANCE MANAGER ASOKAN P.K** ## **R1 BY DIRECTOR GENERAL OF PROSECUTION SRI.T.ASAF ALI** **THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 04-09-2012, THE COURT ON 12-09-2012 DELIVERED THE FOLLOWING:** **sts** ## **OP(CRL)NO.2569/2012** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **P1 COPY OF THE COMPLAINT NO.211 OF 2009 DATED 28/4/2009 P1(A) COPY OF THE TRANSLATION OF EXT.P1** **RESPONDENT'S EXHIBITS: NIL** **/TRUE COPY/** **P.A.TO.JUDGE** **sts** ## **S.S.SATHEESACHANDRAN, J. “C.R”** ## **-----------------------------------------------** O.P.(Crl).No.2569 of 2012 ## **----------------------------------------------Dated this the 12[th] day of September, 2012.** ## **O R D E R** The above original petition has been filed under Article 227 of the Constitution of India. 2. Petitioner is the accused in a complaint case involving the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short “the Act”) on the file of the Additional Judicial Magistrate-II, Jodhpur, Mahanagar. Producing a copy of the complaint with its translated version, and some annexures, petitioner has filed the above original petition to quash that complaint contending that the complainant has no cause of action to file such a complaint before the court where it was presented and taken cognizance of. That challenge set forth ## O.P.(Crl).No.2569 of 2012 :: 2 :: to quash the complaint is built up on the footing that the drawing of the cheque, presentation of the cheque to the bank, returning of the cheque unpaid by the drawee bank, notice issued on dishonour of the cheque to the drawer of that instrument and failure to pay the amount within 15 days on receipt of such notice by the drawer, all the aforesaid acts, have taken place at Ernakulam and no part of the cause of action has taken place at Jodhpur. 3. Entertainability of the original petition to quash the complaint filed before a magistrate court falling outside the jurisdiction of this court being doubted and pointed out to the learned counsel appearing for the petitioner, arguments were advanced before me as if the original petition has been filed invoking the extraordinary jurisdiction of this court under Article 226 of the Constitution of India. Judicial ## O.P.(Crl).No.2569 of 2012 :: 3 :: pronouncements made by this court in U.B.C. v. Govarthanam {2005(2) KLT 461} and Meenakshi Sathish v. Southern Petrochemical Industries {2007(1) KLT 890 FB} explicitly stating that it is not proper for this High Court to entertain a writ petition/original petition under Article 226 or 227 of the Constitution of India, as the case may be, to quash proceedings of a subordinate court under the superintendence of another High Court being pointed out, the learned counsel contended that such decisions have not laid down the correct law and more so, in the light of the decision rendered by the Apex Court in Rajendran Chingaravelu v. R.K.Mishra, Additional Commissioner of Income Tax and others {[2020] 1 SCC 457}, such decisions have no binding force. Learned counsel contended that the petition seeking relief as aforesaid is perfectly maintainable. Observations made by the Apex Court in Paragraphs 10 and 11 with reference ## O.P.(Crl).No.2569 of 2012 :: 4 :: to the cause of action in relation to the facts involved in the above referred case were banked upon by the learned counsel to contend that since the concatenation of all acts constituting cause of action for filing the complaint has arisen only within Ernakulam, the present original petition to quash the complaint filed before a court outside the jurisdiction of this court is proper, correct and perfectly entertainable. 4. I do not find any merit in the submissions made by the learned counsel. In Rajendran Chingaravelu's case (cited supra) challenge canvassed was over the action taken by the Income Tax Officials in respect of alleged violations of the provisions of the Income Tax Act by the petitioner in that case who had carried a huge sum of money when he travelled from Hyderabad Airport to Chennai Airport. A part of the cause of action involved in such case arose ## O.P.(Crl).No.2569 of 2012 :: 5 :: within Hyderabad and as such, the original petition filed by him before the High Court of Andhra Pradesh, which was rejected by that court as not maintainable, was perfectly entertainable before that court, is the purport of the above decision. That decision, in no way, assist the petitioner to seek quashing of the criminal proceedings against him in a subordinate court outside the jurisdiction of this court invoking the extraordinary or supervisory jurisdiction of this court. Further more, the arguments canvassed as above in an original petition filed under Article 227 of the Constitution of India, which can have application only in relation to the subordinate courts falling under the control of this High Court to supervise the functions of such court, have no scope or merit at all. Even assuming that the original petition has been filed under Article 226 of the Constitution, it has to ## O.P.(Crl).No.2569 of 2012 :: 6 :: be pointed out that no writ can be passed against a private body except where it is shown that it has become necessary to compel such body or association to enforce any statutory obligations or such obligations of public nature casting positive obligation upon it. Complainant who has filed the complaint before the magistrate at Jodhpur is shown to be a financing company. Even assuming that such company is carrying on banking business, it cannot be termed as an institution or company carrying on any statutory or public duty. I need not dilate further on those aspects since no case in the lines referred to above has been pleaded or set forth in the above original petition, which, as already indicated, is styled only as an original petition under Article 227 of the Constitution of India. 5. Before concluding, I may point out that there is absolutely no merit in the challenge ## O.P.(Crl).No.2569 of 2012 :: 7 :: set forth to quash the criminal proceedings over the complaint filed before a court outside the jurisdiction of this court on the premise that the entire cause of action arising from the dishonour of the cheque had taken place at Ernakulam. Observations made by the Apex Court in Bhaskaran v. Balan {1999(3) KLT 440(SC)} in determining the cause of action enabling the payee or holder in due course of a cheque, which on presentation had been dishonoured, are quite apposite and relevant in the matter. The Apex Court has observed thus: “It must be remembered that offence under S.138 would not be completed with the dishonour of the cheque. It attains completion only with the failure of the drawer of the cheque to pay the cheque amount within the expiry of 15 days mentioned in clause (c) of the proviso to S.138 of the Act. It is normally difficult to fix up a particular locality as the place of failure to pay the amount covered by the cheque. A place, for that purpose, would depend upon a variety of factors. It can either be at the place where the drawer resides or at ## O.P.(Crl).No.2569 of 2012 :: 8 :: the place where the payee resides or at the place where either of them carries on business. Hence, the difficulty to fix up any particular locality as the place of occurrence for the offence under S. 138 of the Act.” Dilating further on the above question, the Apex Court has pointed out that the word 'ordinarily' used in Section 177 of the Code of Criminal Procedure {for short “the Code”} clearly spells out that the rule is not invariable in all cases. So much so, if there is uncertainly as to where among different localities offence would have been committed any dispute regarding jurisdiction raised has to be determined with reference to Section 179 of the Code. A trial for the offence under Section 138 of the Act, it has been made clear, can be held in a court having jurisdiction over any of the 'localities' pointed out in the decision. When such be the law enunciated by the Apex Court, no further comment need be made on the challenge raised in filing the above original ## O.P.(Crl).No.2569 of 2012 :: 9 :: petition contending that the entire cause of action relating to the dishonour of the cheque has arisen only within the jurisdiction of this court. I have adverted to the cause of action in filing the complaint since that has been pressed into and emphasized by the learned counsel for the petitioner to contend that the petition seeking the reliefs canvassed for is entertainable before this court. Original petition is found to be not entertainable, and it is dismissed. Sd/- **(S.S.SATHEESACHANDRAN) JUDGE** sk/- ## **//true copy//**