2021 (8) TMI 1350 - HC - Indian Laws

Dishonor of Cheque - bald statements as regards the role of the applicants - residents of places beyond the jurisdiction of the Magistrate - section 202 of the Code of Criminal Procedure (Cr.P.C.) - HELD THAT - In the present case perusal of the impugned order dated 15/02/2017 does show that the Magistrate has proceeded to issue process against the applicants by simply recording that the complaint verification statements and the documents filed therewith have been perused. It is an admitted position that the applicants are all residents of places beyond the jurisdiction of the aforesaid Magistrate. In the said suo motu proceeding before the Hon ble Supreme Court in Suo Motu Writ Petition (Cr.) No. 2 of 2020 In Re Expeditious Trial of Cases Under Section 138 of N.I. Act 1881 2021 (4) TMI 702 - SUPREME COURT the question as to whether the enquiry under section 202 of the Cr.P.C. was mandatory in the context of complaints under section 138 of the Act of 1881 was specifically raised and answered - the Hon ble Supreme Court has specifically held that such an enquiry has to be conducted even in cases concerning complaints under section 138 of the Act of 1881. The impugned order does show that no such enquiry was conducted and therefore it is rendered unsustainable. As regards the other contention raised on behalf of the applicants this Court is of the opinion that since in the present case only the order of the issuance of process has been challenged it would be open to the applicants to raise such contention in an appropriate manner if required before the Magistrate. The impugned order passed by the Magistrate is quashed and set aside since the mandatory requirement under section 202 of the Cr.P.C. was not satisfied - the application is partly allowed.

Summary

Issues:
Challenge to order issuing process under section 138 of the Negotiable Instruments Act, 1881 without mandatory enquiry under section 202 of the Code of Criminal Procedure.

Analysis:
The applicants, a Company and its Directors, challenged the order passed by the Magistrate issuing process against them on a complaint under section 138 of the Act of 1881. The complaint alleged their liability for the said offence. The applicants approached the High Court, which granted interim stay to the proceedings before the Magistrate. The High Court noted the absence of representation for the complainant at the final hearing. The applicants argued that the complaint lacked specific allegations against them and that an enquiry under section 202 of the Cr.P.C. was mandatory due to their residence beyond the Magistrate's jurisdiction. They cited the Supreme Court's judgment emphasizing the necessity of such an enquiry in cases under section 138 of the Act of 1881.

The learned counsel for the applicants contended that the impugned order lacked detailed reasoning and merely stated the perusal of the complaint and related documents. They highlighted the Supreme Court's directive for an inquiry under section 202 of the Cr.P.C. in cases where the accused reside outside the court's jurisdiction. The absence of such an enquiry rendered the impugned order unsustainable. The High Court agreed that the order was flawed for not complying with the mandatory requirement of conducting an enquiry under section 202 of the Cr.P.C. The High Court partially allowed the application, quashing the Magistrate's order and instructing the Magistrate to proceed with the complaint in accordance with the law, emphasizing the necessity of the mandatory enquiry.

In conclusion, the High Court set aside the order of the Magistrate issuing process against the applicants due to the failure to conduct the mandatory enquiry under section 202 of the Cr.P.C. The judgment highlighted the importance of following due process, as mandated by the Supreme Court, in cases involving complaints under section 138 of the Act of 1881. The Magistrate was directed to proceed with the complaint lawfully, ensuring compliance with the legal requirements, including the essential enquiry under section 202 of the Cr.P.C.