2017 (8) TMI 1680 - HC - Indian Laws

Writ petitions dismissed for lack of jurisdiction. Petitioner can defend in proper forum.

The court dismissed the writ petitions as not maintainable due to lack of territorial jurisdiction under Article 226 and Article 227 of the Constitution. ... Territorial Jurisdiction - Dishonor of Cheque - whether Writ Petition under Article 226 is maintainable as against a criminal court which is situated outside the territorial jurisdiction of this Court? - HELD THAT:- A Full Bench of this Court had occasion to consider that pertinent issue in Meenakshi Sathish v. Southern Petrochemicals Industries reported in [2007 (1) TMI 644 - KERALA HIGH COURT] and it was held in paragraphs 9 and 10 thereof that in view of clause (2) of Article 226, if part of the cause of action had arisen in the State, writ could be issued against an authority, though the seat of that authority is outside the territorial jurisdiction of this Court. But, the cause of action which must arise in Kerala for issuing the writs of certiorari or prohibition, must relate to the commissions or omissions of an inferior court or Tribunal amenable to the writ jurisdiction of that court and not that of a private party. This Court cannot judicially review the actions of the first respondent therein (the complainant concerned) and that if a complainant files any complaint before any court it may do it rightly or wrongly and the complainant in a complaint alleging offence under Section 138 of the Negotiable Instruments Act, being a private party is not amenable to the writ jurisdiction of this Court under Article 226 and therefore, this Court cannot judicially review the actions of such a complainant by invoking the powers conferred under Article 226 of the Constitution of India. It is well settled law that a High Court shall have judicial superintendence over all courts and Tribunals throughout the territories in relation to which it exercises its jurisdiction. In other words, the subordinate court/Tribunal concerned which is sought to be supervised under Article 227 of the Constitution of India should be one which is situated and functioning within the territorial jurisdiction of the High Court concerned. In the instant case, it is not in dispute that the complaint has been entertained by the Metropolitan Magistrate Court concerned based at New Delhi which is indisputably not within the territorial limits of this Court - the alternate plea made by the petitioner that this Court should invoke jurisdiction under Article 227 of the Constitution of India is not maintainable. The place of commission of the offence is the place where the dishonour of the cheques occur, but that the only court which is having jurisdiction as the competent court to try the offence is the Magistrate Court having territorial jurisdiction over the collection Bank area. This Court need not pronounce any final opinion on this issue, as this Court is not vested with the jurisdiction to entertain these petitions and all those issues raised by the petitioner are left open to be appropriately raised and decided before the competent fora concerned - petition dismissed as not maintainable. Issues Involved:1. Maintainability of Writ Petition under Article 226 against a criminal court outside the territorial jurisdiction.2. Jurisdiction of the High Court under Article 227.3. Applicability of Section 188 of the Cr.P.C. concerning offences committed outside India.4. Determination of the place of commission of the offence under Section 138 of the Negotiable Instruments Act.Issue-wise Detailed Analysis:1. Maintainability of Writ Petition under Article 226 against a criminal court outside the territorial jurisdiction:The petitioner sought to quash complaints under Section 138 of the Negotiable Instruments Act, arguing that part of the cause of action arose in Kerala, thus invoking Article 226(2) of the Constitution. The court referred to the Full Bench decision in *Meenakshi Sathish v. Southern Petrochemicals Industries* (2007(1) KLT 890 FB), which held that writs under Article 226 could be issued if part of the cause of action arose within the State. However, it clarified that the cause of action must relate to commissions or omissions of an inferior court or Tribunal amenable to the court's writ jurisdiction, not a private party. The court concluded that it could not judicially review the actions of the complainant, a private party, under Article 226. Further, the court cited *Radhey Shyam v. Chhabi Nath* (2015) 5 SCC 243, which held that judicial orders of civil courts are not amenable to writ jurisdiction under Article 226. Thus, the writ petitions were deemed not maintainable under Article 226.2. Jurisdiction of the High Court under Article 227:The petitioner alternatively argued for relief under Article 227 of the Constitution. Article 227 grants the High Court superintendence over all courts and tribunals within its jurisdiction. The court noted that the Metropolitan Magistrate Court in New Delhi, where the complaints were filed, was outside its territorial jurisdiction. The Full Bench in *Meenakshi Sathish* had also held that complaints before criminal courts outside Kerala could not be challenged under Article 227. Thus, the court concluded that it lacked jurisdiction under Article 227 to supervise the actions of the New Delhi court.3. Applicability of Section 188 of the Cr.P.C. concerning offences committed outside India:The petitioner contended that the cheques were issued in Saudi Arabia, and thus, prior sanction from the Central Government was required under Section 188 of the Cr.P.C. for trial in India. The court referred to the Full Bench decision in *Samaruddin v. Assistant Director of Enforcement* (1999 (2) KLT 794 F.B.), which held that Section 188 requires Central Government sanction for inquiry or trial of offences committed outside India. However, the court noted that the offence under Section 138 of the Negotiable Instruments Act is deemed committed where the cheque is dishonoured, as per the Supreme Court's decision in *Dashrath Rupsingh Rathod v. State of Maharashtra* (2014) 9 SCC 129. Since the dishonour occurred in India, Section 188 was not applicable.4. Determination of the place of commission of the offence under Section 138 of the Negotiable Instruments Act:The court referred to the Supreme Court's decision in *Dashrath Rupsingh Rathod*, which held that the offence under Section 138 is committed where the cheque is dishonoured. The court also noted the legislative amendments in Sections 142(2) and 142A of the Negotiable Instruments Act, which specify that the competent court for trial is the one with territorial jurisdiction over the collection bank area. Thus, the court concluded that the offence was committed in India, and the competent court for trial was in New Delhi.Conclusion:The court dismissed the writ petitions as not maintainable due to lack of territorial jurisdiction. It clarified that the dismissal was solely on jurisdictional grounds and did not reflect on the merits of the case. The petitioner was granted liberty to raise objections and defenses before the appropriate forum.