Joy vs State Of Kerala on 18 August, 2010

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 277 of 2004()


1. JOY S/O. JOSEPH, VANIYAPURAYIL HOUSE,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REPRESNTED BY THE
                       ...       Respondent

                For Petitioner  :SRI.MATHEW JOHN (K)

                For Respondent  : No Appearance

The Hon'ble MR. Justice P.S.GOPINATHAN

 Dated :18/08/2010

 O R D E R
                                                        "CR"

                   P.S.GOPINATHAN, J.

                 = = = = = = = = = = = =
                   Crl.R.P.No.277 of 2004.
                 = = = = = = = = = = = =

          Dated this the 18th day of August, 2010.

                        O R D E R

The complainant in CMP.No.1716/2003 on the file of

the Judicial Magistrate of the First Class, Pala is the

revision petitioner. He preferred the complaint against the

second respondent for prosecuting him under Section 138

of the Negotiable Instruments Act. The learned Magistrate

by the impugned order dated 22.10.2003 dismissed the

complaint with the following observations:

“No witness examined to prove that the
transaction took place at Pala, so as to have
jurisdiction for this court. Both complainant
and accused are residing within the
jurisdiction of Erattupetta court. The cheque
in question was drawn at Poonjar Federal
Bank and was sent for collection through Co-
operative Bank, Poonjar. Both these banks
are also within the jurisdiction of Erattupetta
Court.”

Assailing the legality, correctness and propriety of the

above order, this revision petition was filed.

Crl.R.P.No.277 of 2004.

-: 2 :-

2. The learned counsel for the revision petitioner took

me through the averments in the complaint and the affidavit

accompanying the complaint. Going by the averments in the

complaint as well as in the affidavit filed in support of the

complaint, I am convinced that there is specific mention that

the transaction in dispute occurred at Milk Bar Hotel at Pala,

which is within the territorial jurisdiction of the trial court.

3. In the above circumstance, I find that the transaction

has taken place within the territorial jurisdiction of the

Magistrate, before whom the complaint was filed. When the

pleadings in the complaint and the averments in the affidavit in

support of the complaint specifically aver that the transaction

in dispute occurred within the jurisdiction of the court before

whom the complaint was filed, the trial court should have given

reliance to such averments and should have taken cognizance.

It should not have insisted the complainant to examine witness

and give further proof in respect of the place where the cause

of action arose, regarding which there is specific pleading in

the complaint and averments in the affidavit. In the light of the

Crl.R.P.No.277 of 2004.

-: 3 :-

pleadings in the complaint and averments in the affidavit,

dismissing the complaint at the pre-cognizance stage, stating

that no witness was examined to prove that the transaction

occurred within the jurisdiction of the court is a hyper

technical approach resulting denial of justice. The learned

Magistrate should have given due reliance to the pleadings in

the complaint and the averments in the affidavit and shall have

taken cognizance. Contrary order is illegal and unsustainable.

Therefore, the order impugned is set aside and the matter is

remitted back to the trial court, which shall dispose the

complaint in accordance with law. The revision petitioner shall

appear before the trial court on 13.9.2010.

P.S.GOPINATHAN,
(Judge)

Kvs/-