IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 8790 of 2005(U)
1. M/S. GAYA PHARMACEUTICALS,
... Petitioner
2. MR.MANOJ BAKER FENN,
Vs
1. LYKA EXPORTS LTD.,
... Respondent
2. STATE OF MAHARASHTRA,
3. STATE OF KERALA,
For Petitioner :SRI.M.P.MADHAVANKUTTY
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :01/02/2007
O R D E R
R.BASANT, J
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W.P.C.No.8790 of 2005
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Dated this the 1st day of February 2007
JUDGMENT
The petitioners are the accused in a prosecution under
Section 138 of the Negotiable Instruments Act and that
prosecution is pending before the Metropolitan Magistrate
Court-12, Bandra, Mumbai, Maharashtra. Cognizance has been
taken by the learned Magistrate. Processes have been issued
against the petitioners.
2. That court functions within the jurisdiction of the
High Court of Maharashtra. The petitioners have come to this
court with the prayer that the proceedings initiated against him
before that court may be quashed invoking the powers under
Article 226 of the Constitution.
3. What is the ground? The short contention raised is
that prosecution in respect of four cheques cannot be the subject
matter of one prosecution as the same violates the mandate of
Section 219 Cr.P.C. This, in short, is the contention raised.
4. That alleged irregularity committed by a court in
Mumbai cannot, obviously, confer jurisdiction of this court to
W.P.C.No.8790/05 2
invoke the powers under Article 226 of the Constitution. There
is no dispute that powers under Section 227 of the Constitution
or Section 482 Cr.P.C cannot be invoked but the learned counsel
contends that in as much as the petitioners have come before
this court by calling his petition as one under Article 226 of the
Constitution, such jurisdiction would be available.
5. I am unable to agree. At the first instance, I must
note that though the petition has come with the label ‘petition
under Article 226 of the Constitution’, it is virtually and truly a
petition under Article 227 of the Constitution/Section 482
Cr.P.C. Cognizance has already been taken by the learned
Magistrate. In these circumstances, the decision in Musaraf
Hussain v. Bhageeratha Engg.Ltd. [2006(2)KLT 525 SC] becomes
relevant. Powers under Article 227 and Section 482 Cr.P.C are
not available to this court. Merely because the petitioners have
chosen to seek the relief under Article 226 of the Constitution,
this court cannot assume jurisdiction.
6. Moreover, even if that court were within the
territorial jurisdiction of this court, I find no reason whatsoever
to invoke the powers under Article 226, 227 or Section 482
Cr.P.C.
W.P.C.No.8790/05 3
7. At worst if the objections were found to be
sustainable, the court will have to register two separate cases to
satisfy the objection raised. Merely because such an alleged
irregularity has been committed by the court, I find no reason to
invoke the powers under any of the above three provisions.
8. There cannot possibly be a contention that the court
at Maharashtra has no territorial jurisdiction to entertain the
complaint. The decision in K.Bhaskaran v. Sankaran Vaidhyan
Balan [2006(1) KLT 552] makes the position crystal clear. The
courts within the jurisdiction of which any of the five events
which, according to the above decision constitute a punishable
offence, occur can entertain territorial jurisdiction. The
contention that the courts at Maharashtra do not have
jurisdiction cannot also, in these circumstances, succeed.
9. In the result, this writ petition is dismissed.
(R.BASANT, JUDGE)
jsr
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W.P.C.No.8790/05 5
R.BASANT, J
C.R.R.P.No.
ORDER
21ST DAY OF JULY 2006