P. Shahabudheen v. State of Kerala and Manappuram General Finance and Leasing Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **TUESDAY, THE 21ST DAY OF JANUARY 2014/1ST MAGHA, 1935** ## **Crl.MC.No. 3429 of 2012** **-----------------------------------** **AGAINST THE ORDER IN CC 843/2011 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II,THRISSUR** **----------** ## **PETITIONER(S)/ACCUSED:** **--------------------------------------** **P.A.SHAHABUDHEEN, AGED 43 YEARS, S/O.P.S.ABDUL RASHEED, 3/67, NEW NO 2/72, PERUNTHALAYUR, MAIN ROAD, P.O.PERUMTHALAIYUR, SANTHI NAGAR, GOPICHETTIPALAYAM-638315, ERODE, TAMIL NADU.** **BY ADVS.SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SRI.ALEX M.THOMBRA SMT.ACHU SUBHA ABRAHAM** ## **RESPONDENT/COMPLAINANT AND STATE:** **-------------------------------------------------------------** ## **1. STATE OF KERALA,** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, (REPRESENTING THE STATION HOUSE OFFICER, VALAPPAD, POLICE STATION).** **2. MANAPPURAM GENERAL FINANCE AND LEASING LIMITED,** **HAVING ITS REGISTERED OFFICE AT MANAPPURAM HOUSE, P.O.VALAPPAD, THRISSUR REPRESENTED BY A.V.UNNIKRISHNAN, S/O.VASUDEVAN, ALAKKARAN HOUSE, PERINJANAM, THRISSUR.** **R1 BY PUBLIC PROSECUTOR SMT.BINDU GOPINATH R2 BY ADV. SRI.B.S.SURESH KUMAR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21-01-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** ## **Crl.MC.No. 3429 of 2012 -----------------------------------** ## **APPENDIX** **PETITIONER(S) EXHIBITS** **ANNEX:-A1:TRUE COPY OF COMPLAINT FILED BY THE PETITIONER DTD 10/6/2010** **ANNEX:-A2:TRUE COPY OF NOTICE FROM THE PETITIONER TO THE 2ND RESPONDENT DTD 17/4/2010** **ANNEX:-A3:TRUE COPY OF THE REPLY NOTICE FROM THE PETITIONER TO THE 2ND RESPONDENT.** **ANNEX:-A4:TRUE COPY OF LETTER ISSUED BY THE 2ND RESPONDENT.** **ANNEX:-A4(A):-TRUE COPY OF ENGLISH TRANSLATION OF ANNEXURE A4** **ANNEX:-A5:TRUE COPY OF RECEIPT DTD 31/7/2012** ## **RESPONDENTS' EXHIBITS** **NIL.** **/ TRUE COPY /** ## **P.S. TO JUDGE** **PJ** ## **A.HARIPRASAD, J.** **-----------------------------------------------Crl.M.C.No.3429 of 2012 -----------------------------------------------Dated this the 21[st] day of January, 2014.** ## **O R D E R** Petition filed under Section 482 Cr.P.C. This petition challenges Annexure A1 complaint filed by the second respondent against the petitioner before the Judicial First Class Magistrate Court - II, Thrissur. Petitioner is called up to answer an accusation under Section 138 of the Negotiable Instruments Act. 2. Petitioner entered in to an agreement with the complainant/second respondent company in the nature of a loan transaction for purchasing a two-wheeler. It was actually a hire purchase transaction. As per the agreement, the petitioner was liable to repay the amount in 36 monthly installments. It is the case of the complainant that the petitioner made a breach in repayment. In order to discharge the liability, the petitioner issued the disputed cheque. When it was presented for collection, the cheque was dishonoured due to insufficiency of **Crl.M.C.No.3429 of 2012 2** funds. After sending a notice as required in the statute, the prosecution was launched. 3. Heard the learned counsel for the petitioner and the learned second respondent. 4. Petitioner raises mainly two contentions. First contention is that he had paid the entire amount as evidenced in Annexure A5. My attention is also drawn to Annexure A4(a), which is the letter issued by the representative of the complainant company at Erode Branch. Petitioner’s case is that he was allowed to go for one time settlement of the liability. However, that did not materialize. Petitioner would contend that subsequently the entire amount was paid off. I find that whether there is any legally enforcible debt subsisted on the date of complaint is a matter to be decided by the learned Magistrate at the time of trial. Power of this court under Section 482 Cr.P.C cannot be used to marshal facts to decide complicated questions. Secondly, learned counsel for the petitioner contended that the **Crl.M.C.No.3429 of 2012 3** entire prosecution is vitiated, as the trial court has no territorial jurisdiction to try the case. The petitioner availed vehicle loan from Erode branch of the second respondent company. There is no dispute to this proposition. Averments in the complaint would go to show that the cheque was drawn on the petitioner’s account maintained by IDBI Bank, Erode Branch. It was presented for collection at Thrissur, where the office of the complainant company is situated. Statutory notice was also issued from Thrissur as is evident from Annexure A2. Annexure A3 is the reply send by a lawyer from Erode to Thrissur. Learned counsel for the petitioner would contend that the complainant was not maintainable for lack of territorial jurisdiction. Learned counsel relied on a decision of this court in _**Santhosh Kumar v. Mohanan (2008(3) K.L.T 461)**_ to reinforce her contention. It is to be noted that subsequent to that decision, the Supreme Court explained the ratio in _**K. Baskaran v. Sankaran Vaidhyan Balan and Another (1999(3) K.L.T 440)**_ in **Crl.M.C.No.3429 of 2012 4** later decisions. Apex court in _**Harman Electronics Private Limited and Another v. National Panasonic India Private Limited**_ ( _**2009(2) K.L.T 113)**_ considered the question whether issuance of notice by itself would give rise to a cause of action. It was held that though it may not constitute a cause of action by itself, communication of notice would constitute the cause of action. Later, the Supreme Court in _**Nishant Aggarwal v. Kailash Kumar Sharma (2013(3) K.H.C 62)**_ considered the question of jurisdiction on account of presentment of the cheque. In that decision all the earlier decisions on the point were considered, it was held as follows: _“ It is clear that this Court also discussed the relevant provisions of the Code, particularly, S.177, S.178 and 179 and in the light of the language used, interpreted S.138 of the NI Act and laid down that S.138 has five components, namely, i) drawing of the cheque; ii) presentation of the cheque to_ **Crl.M.C.No.3429 of 2012 5** _the bank; iii) returning the cheque unpaid by the drawee bank; iv) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount; and v) failure of the drawer to make payment within 15 days of the receipt of the notice. After saying so, this Court concluded that the complainant can choose any one of the five places to file a complaint. As rightly pointed out by learned senior counsel for the respondent, the place of failure to pay the amount has been clearly qualified by this Court as the place where the drawer resides or the place where the payee resides. In view of the same and in the light of the law laid down by this Court in K.Bhaskaran (supra), we are of the view that the learned Magistrate at Bhiwani has territorial jurisdiction to try the complaint filed by the respondent as the respondent is undisputedly a resident of Bhiwani. Further, in K.Bhaskaran (supra), while considering_ **Crl.M.C.No.3429 of 2012 6** _the territorial jurisdiction at great length, this Court has concluded that the amplitude of territorial jurisdiction pertaining to a complaint under the NI Act is very wide and expansive and we are in entire agreement with the same. This Court pointed out that the complaint did not show that the cheque was presented at Delhi, because it was absolutely silent in that regard and, therefore, there was no option but to presume that the cheque was presented at Chandigarh. It is not in dispute that the dishonour of the cheque also took place at Chandigarh and, therefore, the only question which arose before this Court for consideration was whether the sending of notice from Delhi itself would give rise to a cause of action in taking cognizance under the NI Act. In such circumstances, we are of the view that Harman Electronics (supra) is only an authority on the question where a Court will have jurisdiction because only_ **Crl.M.C.No.3429 of 2012 7** _notice is issued from the place which falls within its jurisdiction and it does not deviate from the other principles laid down in K.Bhaskaran (supra).”_ 5. Learned counsel for the petitioner cited _**M/s. Escorts Ltd. v. Rama Mukherjee (Crl.Appeal No.1457/2013)**_ . In this decision, it was held that if five different acts were done as mentioned in _**Baskaran’s**_ case (Supra) in different localities, any one of the courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the N.I Act. It is also held that the complainant can choose any one of those courts. Applying the principle to this decision, I find that the contention that the trial court has no territorial jurisdiction is legally unsustainable. This court is informed by both sides that the matter is placed for evidence. Learned counsel for the petitioner submitted that the company has initiated arbitration proceedings in respect of the same debt. **Crl.M.C.No.3429 of 2012 8** The questions relating to discharge of liability can be raised before the trial court to ascertain whether there is any legal enforcible debt as on the date of filing of the complaint. I do not find any reason to quash the complaint by invoking power under Section 482 Cr.P.C. In the result, the Crl.M.C is disposed of with the above observations. All pending interlocutory applications will stand dismissed. **Sd/A.HARIPRASAD, JUDGE.** //True Copy// P.A to Judge amk