High Court of KeralaSingle Judge2015-11-18Petition allowed; Annexure A3 order set aside; ...

Shajahan v. State of Kerala & V.A. Jabir

Case / Petition Number:Crl.MC.No. 5601 of 2014

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Ramakrishnan
Judgment Date: 2015-11-18
Court Decision / Holding: Petition allowed. Annexure A3 order returning the complaint to the proper court is set aside. The matter is remitted to the court below for fresh disposal from the stage at which it was returned, with directions to take back the complaint on file if represented and to proceed with the case in accordance with law. The trial court is directed to expedite disposal, in line with Supreme Court directions on Section 138 NI Act cases, and to communicate the order promptly to the concerned court.
Final Disposition: Petition allowed; Annexure A3 order set aside; case remitted to the trial court for fresh disposal from the stage at which it was returned; trial court to take back the complaint on file and expedite the proceedings; communications to be sent to the concerned court.

Parties to the Case

Appellants / Petitioners

Shajahan, S/o Hassan Rawther

Respondents

State of Kerala
V.A. Jabir

Legal Representation & Advocates

Counsels for Petitioners

• S. Muhammed Haneef

Counsels for Respondents

• Public Prosecutor SMT Seena Ramakrishnan
• Adv. Arun B. Varghese
• Adv. Jaykar K.S.

Case Synopsis & Summary

This Kerala High Court criminal miscellaneous petition relates to a challenge by the complainant, Shajahan, of an order returning a private complaint under Section 138 of the Negotiable Instruments Act for lack of territorial jurisdiction (Annexure A3, 30-08-2014). The matter arose in CC No.10/2010 before the Judicial First Class Magistrate, Adoor, where after the complainant’s evidence was closed and the accused’s examination under Section 313 CrPC was contemplated, the Magistrate invoked a decision (Dasharath Rupsingh Rathod) to return the case to the proper court, citing territorial issues post-amendment of the NI Act. The judgment discusses amendments by Amendment Ordinance 2015 (No. 6 of 2015) that vest jurisdiction based on the presenting bank’s location and permit transfer back to the original court if the presenting bank lies within that court’s jurisdiction. It also cites Binoy K. Mathew v. Godley Dev John to support retrospective operation of the amendment, and cites a contrasting view from Dasharath Rathod to distinguish the present facts. The High Court ultimately holds that Annexure A3 is unsustainable in law, remitting the matter to the trial court for fresh disposal from the stage at which it was returned, directing the trial court to take back the complaint and to expedite the proceedings in accordance with the law.

Provisions of Law Cited

Section 482 CrPCSection 138 of the Negotiable Instruments ActSection 313 CrPCAmendment Ordinance 2015 (No. 6 of 2015)

Legal Doctrines & Maxims

Retrospective operation of statutory amendments (Amendment Ordinance 2015)
Jurisdiction based on presenting bank under NI Act amendment
Where evidence has already been recorded, the court may proceed in the same proceedings (distinction from cases requiring return)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Annexure A3 (30-08-2014) returning the private complaint to the proper court on territorial grounds is unsustainable. Citing the amended NI Act (Amendment Ordinance 2015 No. 6) and decisions such as Binoy K. Mathew v. Godley Dev John, the complainant argues that jurisdiction lies where the cheque was presented and that the transferee court must return the case to the presenting court if required; the evidence having already been recorded, the matter should not have been sent back but remitted to the original court for disposal from the stage at which it was returned, with directions to proceed expeditiously.

Contentions of Respondents

The respondents concede the amendment to the NI Act grants jurisdiction based on the presenting bank; they do not oppose setting aside Annexure A3 and returning the matter to the proper forum. They rely on the Dasharath Rathod line of cases to argue that once evidence has commenced, the court may continue in the same proceedings, and they contend the cited decisions should be applied with due regard to the amended statute, including retrospective operation; they emphasize expeditious disposal under the Apex Court directions for NI Act cases.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Dasharath Roop Singh Rathod v State of Maharashtra and Another	2014 (3) KLT 605	Distinguished	Cited for its dictum relating to cases where evidence has not yet started; the Kerala High Court distinguishes it since evidence had already been recorded in the present case.
Binoy K. Mathew v Godley Dev John	2015 (3) KLT 784	Positive	Supports retrospective operation of the 2015 NI Act amendment and its effect on jurisdiction.
Dashrath Rupsingh Rathod v State of Maharashtra and Another	2014 (3) KHC 362	Distinguished	Cited as dictum; distinguished on facts, since the present case involved prior recording of evidence and not a pure territorial remand scenario.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Shajahan v. State of Kerala & V.A. Jabir and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 18TH DAY OF NOVEMBER 2015/27TH KARTHIKA, 1937** ## **Crl.MC.No. 5601 of 2014 ()** **--------------------------CC 10/2010 of JUDICIAL FIRST CLASS MAGISTRATE COURT- I, ADOOR -----------------** ## **PETITIONER/COMPLAINANT :** **-----------------------------------------** **SHAJAHAN, S/O. HASSAN RAWTHER, GULA BAZAR, PANDALAM.** **BY ADV. SRI.S.MUHAMMED HANEEFF** ## **RESPONDENTS/STATE & ACCUSED :** **--------------------------------------------------** ## **1. STATE OF KERALA** **REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.** **2. V.A. JABIR, S/O. AHAMMED CHIRAYIL PHONE SHOP, A.R.BUILDING, PANDIKKADU ROAD MANJERI, MALAPPURAM 676 121** **R1 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN R2 BY ADV. SRI.ARUN.B.VARGHESE BY ADV. SRI.JAYKAR.K.S.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18-11-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **bp** ## **Crl.MC.No. 5601 of 2014 () ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ------------------------------------ANNX.A1: A TRUE COPY OF THE AFFIDAVIT IN LIEU OF CHIEF EXAMINATION IN CC NO.10/2010 ON THE FILE OFTHE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT-I ADOOR. ANNX.A2: A TRUE COPY OF THE DEPOSITION IN CROSS EXAMINATION OF THE COMPLAINANT IN C.C NO.10/2010 ON THE FILE OFTHE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT-I ADOOR. ANNX.A3: A TRUE COPY OF THE ORDER DATED 30-8-2014 IN C.C.NO.10/2010 ON THE FILE OFTHE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT-I ADOOR RESPONDENT(S)' EXHIBITS : NIL.** ## **//TRUE COPY//** ## **P.A.TO JUDGE** **bp** ## K.RAMAKRISHNAN, J. =================== Crl. M.C. No.5601 OF 2014 ======================= Dated this the 18[th] day of November, 2015 ## ORDER This is an application filed by the petitioner/complainant in CC No.10/2010 on the file of the Judicial First Class Magistrate Court-I, Adoor to quash Annexure A3 order under Section 482 of the Code of the Criminal Procedure. 2. It is alleged in the petition that the petitioner filed a private complaint as Annexure-I against the 2[nd] respondent under Section 138 of the Negotiable Instruments Act alleging that 2[nd] respondent had issued a cheque in discharge of the liability which when presented was dishonoured and inspite of notice issued, he had not paid the amount. After taking cognizance, summons was issued to the 2[nd] respondent. He appeared and the particulars of offences were read over and explained to him and he pleaded not guilty. Thereafter the case was posted for evidence. The complainant filed affidavit in lieu of chief examination and Exts.P1 to P6 were marked and he was cross examined evidenced by Annexure A2 copy of deposition of witness. Thereafter the complainant's evidence was closed on 26.3.2014 and the case was posted to examination of the accused under Section 313 of the Code to Crl. M.C. No.5601 OF 2014 2 3.4.2014 and again it was adjourned to 16.4.2014. Since the accused did not appear, the learned Magistrate issued nonbailable warrant to the accused and posted the case to 3.5.2014, 13.6.2013 and 30.8.2014 for procuring the presence of the accused for conducting his examination under 313 of the Code. On 30.8.2014 relying on the decision of the Supreme Court in **Dasharath Roop Singh Rathod v State of Maharashtra and Another** [2014 (3) KLT 605], the learned Magistrate returned the complaint, on the ground that court has no territorial jurisdiction to entertain the complaint, to present before the proper court by Annexure A3 order. This order is being challenged by the petitioner by filing this petition. 3. Heard the counsel for the petitioner Shri. S. Muhammed Haneef and Arun B. Varghese for 2[nd] respondent and Smt. Seena Ramakrishnan learned Public Prosecutor appearing for the 1[st] respondent. 4. Both the counsel submitted that in view of the amendment to the Negotiable Instruments Act, vesting Crl. M.C. No.5601 OF 2014 3 jurisdiction on the court on the basis of the bank in which the cheque was presented, they have having no objection in setting aside the order and sent back the matter to the court below. 5. It is an admitted fact that petitioner filed a complaint under Section 138 of the Negotiable Instruments Act against the 2[nd] respondent and evidence of the complainant was over and it was posted for examination of the accused under Section 313 of the Code and it was under that stage the court below had passed Annexure A3 order. Even going through the dictum laid down in the decision reported in **Dashrath Rupsingh Rathod v State of Maharashtra and Another** [2014 (3) KHC 362] in paragraph 20 of the judgment the Supreme Court has held that cases were evidences already been taken, the court can proceed with the case. Only in cases where the evidence is not started only those cases need be returned for presentation before the proper court. After the judgment, Section 138 of the Negotiable instruments Act has been amended by virtue of Amendment Ordinance 2015 (No.6 Crl. M.C. No.5601 OF 2014 4 of 2015) which was published in Gazette dated 15.6.2015 and right has been given to the complainant to file complaint within whose jurisdiction the cheque was presented for collection also. Further by virtue of the amendment, it is also mentioned that if the case has already been transferred, then transferee court is directed to return the complaint to be presented in the court in which it was originally filed, if the case was filed before the court within whose jurisdiction the presenting bank was situated. The scope of the Amendment Ordinance has been considered by the Division Bench of this court in the decision reported in **Binoy K. Mathew v Godley Dev John** [2015 (3) KLT 784] and it has been held that it will have retrospective operation by virtue of the operation of the law and even if the complaints returned and presented before the court, within whose jurisdiction the drawee bank is situated as per the directions of the Supreme Court, it will have to be returned and presented before the earlier court if the presenting bank is situated within the jurisdiction of the earlier court. Even as per the dictum laid down in the **Dashrath Rupsingh Rathod's** Crl. M.C. No.5601 OF 2014 5 **Case,** the order passed by the court below is unsustainable as evidence has already been started in this case and that was not a case fit for return for presentation before the proper court as per the directions given in that decision. So the court below has not properly understood the dictum laid down in the decision and wrongly applied the decision and passed impugned Annexure A3 order which is unsustainable in law and the same is liable to be set aside. So the petition is allowed. Annexure A3 order passed by the Magistrate returning the complainant for presentation before proper court wrongly applying the decision for **Dashrath Rupsingh Rathod's Case** is set aside and the matter is remitted to the court below for fresh disposal in accordance with law. The court below is directed to take back the complaint on file, if it is represented by the complainant. The parties are directed to appear before the court below on 7.12.2015 and before that day, the complainant is directed to produce the entire records which has been returned to him by the court below pursuant to Annexure A3 order and if the complainant is represented, then Crl. M.C. No.5601 OF 2014 6 the court below is directed to take the complaint on file and proceed with the case from the stage at which it was returned and dispose of the case in accordance with law. Court below is also directed to expedite the trial of the case taking into consideration of the directions given by the Apex court in this regard in respect of disposal of cases filed under Section 138 of the Act. With the above directions and observations, the petition is allowed and disposed of. Office is directed to communicate this order to the concerned court immediately. Sd/K.RAMAKRISHNAN, JUDGE SKV