M/S.Sree Gokulam Chit And Finance … vs State Of Kerala on 30 January, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 457 of 2009()



1. M/S.SREE GOKULAM CHIT AND FINANCE COM.
                      ...  Petitioner

                        Vs

1. STATE OF KERALA
                       ...       Respondent

                For Petitioner  :SMT.A.SREEKALA

                For Respondent  : No Appearance

The Hon'ble MR. Justice R.BASANT

 Dated :30/01/2009

 O R D E R
                           R. BASANT, J.
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                   Crl.M.C.No. 457 of 2009
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            Dated this the 30th day of January, 2009

                              O R D E R

The petitioner is the complainant in a prosecution under

Section 138 of the N.I. Act. The Branch Manager at Tripunithura

at Ernakulam has initiated proceedings on behalf of the

complainant, a private limited company. In the complaint in

paragraph 4, the learned AC.J.M., Ernakulam, before whom the

complaint was filed, is shown to have jurisdiction as follows:

“4. The cheque issued by the accused was

dishonoured due to insufficiency of funds in her

bank account. The accused has not paid the

amount as per the above cheque so far, in spite of

the notice issued to her. The cheque was

presented for collection by the complainant

through the Vijaya Bank, Thripunithura branch

which is within the jurisdiction of this Hon’ble

Court and the cause of action has arisen within the

jurisdiction of this Hon’ble Court.”

(emphasis supplied)

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An affidavit was filed along with the complaint under Section 145 of

the N.I. Act asserting that the court has jurisdiction to try the offence.

The accused resides outside the the jurisdiction of the court and for

that reason obviously, the matter was posted for enquiry under Section

202 Cr.P.C. as per the amended Section 202 Cr.P.C.

2. At that stage the complainant appears to have alertly noted

that in view of the decision in Santhoshkumar v. Mohanan (2008

(3) KLT 461) further elucidation is necessary to explain jurisdiction

and a further affidavit was filed, wherein it was specifically asserted

that the transaction with the accused was at the Tripunithura branch of

the complainant situated within the jurisdiction of the ACJM. The

learned ACJM by the impugned order held that the court has no

jurisdiction in the light of the decision in Santhoshkumar (supra) and

directed that the complaint be returned for re-presentation before

proper court.

3. The learned counsel for the petitioner submits that the course

adopted by the learned Magistrate is unjustified. Enquiry under section

202 Cr.P.C. had to be conducted mandatorily in view of the

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amendment. In such enquiry the complainant had explained by

additional affidavit filed how the learned ACJM has jurisdiction to try

the case. It is not as though there were no averments earlier in the

complaint and in the affidavit, it was specifically averred that the court

has jurisdiction. But in the light of the decision referred above, which

clarifies the position, the complainant become obliged to make further

affidavit and stated before the court that the court is competent to

entertain jurisdiction.

4. It is specifically asserted at the Bar that the complainant has

no branch at Vaikom and the transaction between the parties was at

Tripunithra branch of the complainant company. The cheque was

drawn and issued to the Tripunithura branch and therefore the court

having jurisdiction over the Tripunithura branch does certainly have

jurisdiction, it is asserted.

5. The learned Magistrate appears to have taken a view against

the petitioner for the sole reason that it is only in the additional

affidavit that the details of the transactions are narrated. That, I am

afraid, is not a sufficient reason to justify return of the complaint. The

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averments in the additional affidavit clearly explains the further or

additional basis on which it was asserted in paragraph 4 of the

complaint that the learned ACJM has jurisdiction to deal with the

matter. I am, in these circumstances, satisfied that the impugned order

is not justified and the same does warrant interference invoking the

extra ordinary inherent jurisdiction under Section 482 Cr.P.C.

6. In the result:

a) This Crl.M.C. is allowed.

b) The impugned order is set aside.

c) The learned Magistrate is directed to consider the matter

afresh and pass appropriate orders under Section 203/204 Cr.P.C.

d) The petitioner shall re-present the complaint before the ACJM

forthwith – on or before 16.2.2009. The Registry shall forthwith return

the original complaint and the affidavits to the petitioner for re-

presentation before the Magistrate.

(R. BASANT)
Judge
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