K. Balakrishnan Nair, J.
1. The common question that arises for decision in these cases is whether this Court can quash a complaint filed under Section 138 of the Negotiable Instruments Act before the Judicial First Class Magistrate's Court-I, Coimbatore and issue a writ of prohibition against the said Court from proceeding with the case, in so far as the same concerns the writ petitioner. Since the facts and the questions of law involved are the same, these cases are heard together and disposed of by this common judgment.
W.P. (C) No. 21289/2005:
2. This writ petition is treated as the main case. The petitioner was a partner of the 2nd respondent-firm, which is an unregistered partnership firm. The 1st respondent is a company registered under the Indian Companies Act, engaged in the manufacture of fertilizers and Agro-chemicals. The 2nd respondent was marketing the goods manufactured by the 1st respondent. The petitioner retired from the partnership with effect from 1-4-2001. For the amounts due from the 2nd respondent to the 1st respondent, the 2nd respondent had issued certain cheques. Three of those cheques drawn on various dates in December, 2003, when presented by the 1st respondent through its Bank at Coimbatore, were dishonoured. So, after completing the usual formalities under the provisions of the Negotiable Instruments Act, the 1st respondent filed Ext. P1 complaint before the Judicial First Class Magistrate's Court-I, Coimbatore, alleging the offence punishable under Section 138 read with Section 141 of the said Act. The Magistrate after taking cognizance, issued summons to the accused, who are respondents 2 to 4 and the petitioner. The petitioner appeared before the said Court and was enlarged on bail.
3. The petitioner submits, the complaint against her is not maintainable. The cheques were issued in December, 2003. She retired from the 2nd respondent-firm with effect from 1-4-2001. In support of that submission, the petitioner relies on Ext. P2 deed of partnership, reconstituting the partnership on 1-4-2001. The said reconstitution in the partnership was intimated to the sales tax authorities at Tripunithura, as per Ext. P3 letter. Exts. P4 and P5 income-tax returns filed by the 2nd respondent would show that the petitioner was a partner up to 31 -2-2001 and was not a partner with effect from 1-4-2001. Exts. P6 and P7, which relate to in-come-tax returns for the subsequent years, would show that the petitioner was not a partner of the firm for the subsequent years also. In view of the above position, the petitioner has been made an accused in the case unnecessarily. She cannot be said to be a person in-charge and responsible for the conduct of the affairs of the firm, in the light of the decision of the Apex Court in Katta Sujatha v. Fertilizers and Chemicals Travancore Ltd. : (2002)7SCC655 and also the decision of the Madras High Court in Ashok Muthanna v. Wipro Finance Ltd., rep by its Area Manager, Chennai 2001 (2) Crimes 307. On the basis of the above facts and grounds, the petitioner prays to quash Ext. P1 to the extent she is arrayed as an accused in it and also seeks a writ of prohibition to restrain the Coimbatore Court from proceeding against her.
4. The writ petition was admitted and stay was granted. The 1st respondent appeared and raised an objection that the writ petition is not maintainable. The learned single Judge, who heard the matter, referred the case to be heard by a large Bench, along with two other connected cases, by order dated 16-8-2005. The case has been referred for the apparent conflict between the Division Bench decision of this Court in Krishnakumar Menon v. Neoteric Informatique (P) Ltd. 2001 (3) KLT 689 : 2002 Cri LJ 706 and another Division Bench decision in U.B.C. v. Govarthanam 0085/2005 : 2005(2)KLT461 . In the first decision, it was held that the power under Section 482 of the Cr. P.C. or under Article 227 of the Constitution of India cannot be exercised to quash a complaint pending before a Court outside Kerala. But, it was observed that in appropriate cases, the jurisdiction of this Court under Article 226 could be invoked. Whereas, in U.B.C. v. Goverthanam (supra), it was held that a writ petition under Article 226 also will not lie for the said purpose.
5. Noticing the conflict between the above two decisions, the Division Bench referred the matter to be heard by a larger Bench. The relevant portion of the reference order reads as follows:
The question in the present case is whether it could be said that any part of the cause of action has arisen within the jurisdiction of this High Court. According to the petitioner, cause of action arose in the State of Kerala and, therefore, writ petition will lie before this Court. Another incidental question to be decided is when and where the cause of action or part of cause of action arise to file a complaint under Section 138. Since, apparently, there are conflict of decisions of the two Division Benches, we are of opinion that the question whether a writ petition will lie before the High Court to quash a complaint pending in a subordinate Court in another State, if part of the cause of action arose in this State, in deserving circumstances, should be decided by a larger Bench of this Court.
6. We heard the learned Counsel on both sides. Sri Joy Thattil, learned Counsel for the writ petitioner mainly relied on the decision of the Apex Court in Navinchandra N. Majithia v. State of Maharashtra : AIR2000SC2966 , in support of his submissions. Sri S. Sreekumar, learned Counsel for the 1st respondent mainly relied on the decision of the Apex Court in Mosaraf Hossain Khan v. Bhageeratha Engg. Ltd. : 2006CriLJ1683 . When the learned Counsel for the petitioner contended that the decision in Krishnakumar Menon's case lays down the correct position, the learned Counsel for the 1st respondent would point out that U.B.C.'s case is laying down the correct legal position. The decision in Navinchandra's case was concerning the quashing of a First Information Report filed in Shillong, concerning the transactions, which took place in Mumbai, relating to transfer of shares in a company. It appears the Deputy Superintendent of Police was moved. Based on that motion, a crime was registered and an F.I.R. was filed before the Criminal Court concerned, in Shillong. A writ petition was filed before the Bombay High Court, to quash the F.I.R. The High Court dismissed it. The Apex Court in Navinchandra's case, reversed the said decision and directed that the complaint which is being investigated by the Special Superintendent of Police, CID, Shillong shall be transferred to the Mumbai Police, for further investigation through its Economic Offences Wing, General Branch CID or any other branch competent to investigate the same. The main judgment granting the abqve relief was rendered by D. P. Mohapatra, J., K.T. Thomas, J., rendered a separate but concurring judgment, in which it was observed that since major part of the cause of action took place in Mumbai, the police from Shillong will have to investigate the same in Mumbai. So, the Bombay High Court will have jurisdiction over the investigation conducted in the State of Maharashtra. His Lordship in the said judgment observed as follows:
15. In the aforesaid situation it is almost impossible to hold that not even a part of the cause of action has arisen at Bombay so as to deprive the High Court of Bombay of total jurisdiction to entertain the writ petition filed by the petitioner. Even the very fact that major portion of the investigation of the case under the FIR has to be conducted at Bombay itself shows that the cause of action cannot escape from the territorial limits of the Bombay High Court.
The decision of this Court in Krishnakumar Menon's case was under Section 482 of the Cr. P.C. Various complaints were filed against the petitioner therein before the Additional Chief Metropolitan Magistrate, Mumbai, under the provisions of the Negotiable Instruments Act, on the ground of dishonour of the cheques issued by him. A petition under Section 482 of the Cr. P.C. was moved to quash the complaint. This Court held that the said petition under Section 482 is not maintainable, but observed that a petition under Article 226 of the Constitution of India may lie, in view of the decision of the Apex Court in Navinchandra's case (supra). Whether a petition under Artcicle 226 of the Constitution of India is maintainable was not a point which arose for decision in that case. Dehors the said observation, the decision would stand. Therefore, the observation can only be treated as obiter dicta. The decision in U.B.C.'s case was also one relating to the offences under the Negotiable Instruments Act. The appellants therein were accused in a calendar case on the file of the Judicial First Class Magistrate's Court-II, Erode, in Tamil Nadu. The learned Magistrate took cognizance of the offence under Section 138 of the said Act and issued summons. The appellants filed a writ petition under Article 226 of the Constitution of India, to quash the complaint, on the ground that part of the cause of action arose in Kerala and, therefore, this Court has jurisdiction to quash the complaint under Article 226, in view of the decision of the Apex Court in Navinchandra's case (supra). The Division Bench held that the writ petition under Articles 226 and 227 is not maintainable. The decision in Navinchandra's case was distinguished on the ground that the prayer in that writ petition was to quash the F.I.R., and the investigation. The decision in Krishnakumar Menon's case was distinguished on the ground that it was not a case arising under Article 226, but under Section 482 of the Cr. P.C.
7. There is a recent decision of the Apex Court in Mosaraf Hossain Khan v. Bhageeratha Engg. Ltd. : 2006CriLJ1683 , concerning quashing of a complaint. It was a case where the respondent-company had some business transactions in West Bengal. The cheque issued by the respondent in favour of the appellant bounced. The appellant moved the Cheif Judicial Magistrate, Birbhum at Suri, alleging commission of the offence under Section 138 of the Negotiable Instruments Act. The Magistrate took cognizance of that offence and issued summons to the accused. Instead of appearing before the Court, the respondents moved the Kerala High Court and obtained interim stay of further proceedings in the matter. The said order was challenged in appeal before the Supreme Court. The Apex Court allowed the appeal, holding that the Kerala High Court has no jurisdiction to entertain the writ petition, as no part of the cause of action arose in Kerala.
8. In the light of the above mentioned two decisions of the Apex Court in Navinchandra and Mosaraf Hossain Khan, which Division Bench decision of this Court, that is whether the decision in Krishnakumar Menon's case or the decision in U.B.C.'s case, lays down the correct legal position. Is the point to be answered in this case. There cannot be any dispute that the complaint before the Coimbatore Court and taking cognizance of the same by the said Court cannot be challenged under Section 482 of the Cr. P.C. or under Article 227 of the Constitution of India, before this Court. The only contention raised is that a writ petition under Article 226 will lie, in view of Clause (2) thereof, as part of the cause of action in the transaction regarding issuance of the cheque, its dishonour etc., arose in Kerala.
9. Article 226(2) reads as follows:
226. Power of High Courts to issue certain writs:
(1) ...
(2) The power conferred by Clause (1) to issue directions, orders or writs to any Government authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
The said clause was introduced as Clause (1A) by the 15th Amendment Act, 1963, in view of the decisions of the Apex Court in Election Commission, India v. Saka Venkata Subba Rao : [1953]4SCR1144 ; Rashid v. I.-T. Investigation Commission : [1954]25ITR167(SC) ; Khajoor Singh v. Union of India : [1961]2SCR828 and Collector of Customs v. E.I. Commercial Co. : [1963]2SCR563 . The result of the above decisions was that writ petitions under Article 226 against the Union of India were maintainable only in the High Court of Punjab, as at the relevant time the territory of national capital was under the jurisdiction of the said High Court. The High Courts of Madras and Assam took a different view that if part of the cause of action arose within the respective States, writs could be issued to the Union of India by them. To get over the above decisions of the Apex Court and make the law in tune with the decisions of the above High Courts, the amendment was introduced. Article 226 was drastically amended by Constitution 42nd Amendment Act, 1976. The original position was substantially restored later, by the Constitution 44th Amendment Act, 1978. In view of Clause (2) of Article 226, if part of the cause of action arose in the State, writ could be issued against an authority, though the seat of it is outside the territorial jurisdiction of this Court.
10. 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 this Court and not that of a private party. This Court cannot judicially review the actions of the 1st respondent. It may file any complaint before any Court. It may do it rightly or wrongly. The 1 st respondent being a private party not amenable to the writ jurisdiction of this Court, we cannot judicially review its actions. But, the point to be decided is whether we can judicially review the action of the Magistrate in taking cognizance under Section 190(1)(a) read with Section 200 of the Cr. P.C, of the offence alleged against the petitioner and issuing process under Section 204. The entire cause of action, as far as the action of the learned Magistrate is concerned, arose in Coimbatore, outside the jurisdiction of this Court. So, even if the complainant has wrongly filed a complaint before the Coimbatore Court, the action of taking cognizance and issuance of the process took place outside the jurisdiction of this Court. Therefore, we have no doubt in our mind that the reliefs sought in this writ petition cannot be granted by this Court. We are of the view that the decision of the Division Bench in U.B.C. v. Govarthanam 0085/2005 : 2005(2)KLT461 lays down the correct legal position. The observation in Krishnakumar Menon's case concerning the power of this Court under Article 226 of the Constitution of India is an obiter. Further, the decision of the Apex Court in Navinchandra's case (supra) cannot have any application to a case arising on a private complaint under Section 138 of the Negotiable Instruments Act. In Navinchandra's case, the Apex Court considered the question regarding quashing of an F.I.R. and the criminal investigation conducted by the police in Shillong about the offences committed or the cause of action which arose in Maharashtra State. So, as the police from Shillong has to do investigation in Maharashtra, the Apex Court observed that the Bombay High Court has jurisdiction in the matter. The said observation can have no application to a private complaint, based on which a Magistrate's Court, which is outside the jurisdiction qf the Kerala High Court takes cognizance and proceeds with the trial. So, the observation in Krishnakumar Menon's case, concerning the jurisdiction of the High Court under Article 226 of the Constitution of India, does not lay down the correct legal position, as far as private complaints are concerned. Even if the cause of action for the complaint under Section 138 of the Negotiable Instruments Act arose in Kerala, the Kerala High Court cannot interfere with the proceedings before a Criminal Court, outside the jurisdiction of this Court.
11. The reference is answered as above. Since nothing more survives to be decided in this case, it is unnecessary to send this case back to the Division Bench or the single Bench. Accordingly, the writ petition is dismissed without prejudice to the contentions of the petitioner regarding the merits of her case and her right to move the Coimbatore Court, where the complaint is pending, or the Madras High Court, for appropriate reliefs.
W.P. (C) Nos. 21240 and 21241/2005:
12. The judgment in W.P. (C) No. 21289/ 2005 will govern these cases also, as the facts and the question raised are identical. Accordingly, they are also dismissed without prejudice to the contentions of the petitioner regarding the merits of her case and her right to move the appropriate Court for appropriate reliefs.