Sebastian T.L. v. Sebastian Mattathil and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 21ST DAY OF NOVEMBER 2014/30TH KARTHIKA, 1936** **Crl.Rev.Pet.No. 1139 of 2010 ( )** **-----------------------------------------** **AGAINST THE ORDER IN Crl. MP 1241/2010 of J.M.F.C.-I, CHERTHALA, DATED 11-03-2010** ## **REVISION PETITIONER(S)/COMPLAINANT:** **------------------------------------------------------------** **SEBASTIAN T.L., S/O.LONAN, THAYYIL HOUSE, ARTHUNKAL, CHERTHALA, ALAPPUZHA.** **BY ADVS.SRI.C.V.MANUVILSAN SRI.P.G.SURESH SMT.K.VIDYA MANUVILSAN SRI.M.R.VIBIN** ## **RESPONDENT(S)/ACCUSED:** **----------------------------------------** ## **1. SEBASTIAN MATTATHIL, MATTATHIL HOUSE, (JRT ROCK), CHETTIKULANGARA, CHALAKKUDY, THRISSUR DISTRICT.** **2. THE STATE OF KERALA, REPRESNTED BY ITS HOME SECRETARY, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **R1 BY ADV. SRI.J.OM PRAKASH R2 BY PUBLIC PROSECUTOR SRI. N. SURESH** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ss** **:2:** ## _**Crl.Rev.Pet.No. 1139 of 2010**_ ## **APPENDIX** **PETITIONER'S EXHIBITS : ANNEXURE-A1 : PHOTOCOY OF THE COMPLAINT FILED BY THE PETITINER AGAINST THE 1ST RESPONDENT ANNEXURE-A2 : PHOTOCOPY OF THE ORDER DATED 27.01.2010, PASSED BY THE LEARNED JUDICIAL FIRST CLASS MAGISTRATE -II. ANNEXURE-A3 : COPY OF THE ORDER DATED 11.03.2010 ISSUED BY THE LEARNED JUDICIAL FIRST CLASS MAGISTRATE-I, CHERTHALA IN CRL. M.P.NO.1241/2010. ANNEXURE-A4 : PHOTOCOPY OF THE CERTIFICATE OF DISABILITY ISSUED BY THE MEDICAL COLLEGE HOSPITAL, ALAPPUZHA. RESPONDENTS EXHIBITS : NIL** _// True Copy//_ _P.A. To Judge_ ss ## **K. RAMAKRISHNAN, J.** . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crl. R. P.No.1139 of 2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dated this the 21[st] day of November, 2014 ## **O R D E R** Complainant in Crl.M.P.No.1241/2010 on the file of the Judicial First Class Magistrate Court-I, Cherthala, is the revision petitioner herein. The revision petitioner filed Crl.M.P.No.1241/2010 against the first respondent herein, alleging offence under Section 138 of the Negotiable Instruments Act (hereinafter called ‘the Act’). 2. It is alleged in the complaint was that, first respondent owed an amount of 3,75,000/- and in discharge₹ of that liability, he had issued two cheques dated 29.10.2006 and 29.11.2006, both were drawn on State Bank of India, Chalakkudy Branch. He had presented both the cheques for collection, through Federal Bank, Thanky Branch, and they were dishonored for the reasons ‘funds insufficient’ and thereafter he sent notice, but he did not pay the amount. So he had committed the offence punishable under Section 138 of the Negotiable Instruments 2 Crl. R. P.No.1139 of 2010 Act. The case was originally filed before the Judicial First Class Magistrate Court-II Cherthala, and the case was taken on file and thereafter as per the order dated 27.10.2010, the case was returned for presentation before proper court and accordingly, that complaint was represented before the present court and after hearing both sides, the magistrate by the impugned order found that, that court has no jurisdiction to entertain the complaint and returned the same for presentation before proper court and that was challenged by the revision petitioner, by filing this revision. 3. Heard both sides. 4. The counsel for the revision petitioner submitted that, the complaint was filed on the basis of the decisions of the court, which was prevailing at that time and even the latest Supreme Court decision is not applicable to this case, as it has got only prospective operation. 5. On the other hand, the leaned counsel for the 3 Crl. R. P.No.1139 of 2010 first respondent submitted that, in view of the authoritative pronouncement of the Hon’ble Supreme Court in the latest decision, the order does not call for any interference and he will have to present the complaint before proper court. 6. It is an admitted fact that, the complainant had filed a complaint against the first respondent on the basis of two cheques said to have been given by the first respondent, both drawn on State Bank of India, Chalakkudy Branch and both the cheques were presented for collection through Federal Bank, Thanky Brnach and they were dishonored for the reason ‘funds insufficient’ and the complainant had issued notice from Cherthala and in spite of receipt of the notice, the accused had not paid the amount and thereby he had committed the offence punishable under Section 138 of the Act. 7. The complaint was filed on the basis of the decision of **(1999(7) SCC 510) K. Bhaskaran v. Sankaran Vaidhyan Balan and Another** that, there are 4 Crl. R. P.No.1139 of 2010 five places which can be treated as the places giving cause of action for filing a complaint under Section 138 of the Act and again followed by **(2009(1) KLT 886) Shamshad Begam v. Mohammed** . But specifically it was clarified in the decision reported in **(2009(4) KHC 277) Philipose P.M. v. P.C. Chandy and Another** . But however, now an authoritative pronouncement on this aspect has been made by a larger bench of the Supreme Court in the decision reported in **[(2014(3) KHC 362 (SC)] Dashrath Rup Singh Rathod v. State of Maharashtra and Another** , wherein it has been held that, only the courts within whose jurisdiction the drawee bank is situated, alone will get jurisdiction to entertain the complaint and in paragraph 20 of the judgment, it has been further observed that, all pending matters where evidence has not been started, the complaint has to be returned to present before proper court and if the representation is made within 30 days of such return, then it will be deemed to have been filed within 5 Crl. R. P.No.1139 of 2010 time. In this case, admittedly the drawee bank is in Chalakkudy. So court at Cherthala, will not get jurisdiction to entertain the complaint. In view of the above decision, the order passed by the court below returning the complaint to be presented in proper court is perfectly justifiable and it cannot be said to have committed any illegality in returning the complaint for presentation before proper court. However, considering the fact that, the operation of the order has been stayed by this court and the case is pending for more than four years before this court, this court feels that the benefit given by the Hon’ble Supreme Court in the decisions cited (supra) has to be extended to the revision petitioner also and dismissal of this revision petition can be treated as the order directing return of the complaint, giving him time to represent the same before the concerned court. So the order passed by the court below is perfectly justified and 30 days time is granted to the 6 Crl. R. P.No.1139 of 2010 revision petitioner to present the complaint before the concerned court, within whose jurisdiction the drawee bank is situated and if the complaint is represented within that time, then it will be deemed to have been filed in time, in tune in the decision reported in Dashrath Rup Singh Rathod’s case (supra). With the above observation and direction, the revision petition is disposed of. Office is directed to communicate this order to the concerned court, immediately. Sd/- ## **K. Ramakrishnan, Judge** // True Copy// P.A. to Judge ss