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2016 (4) TMI 613 - SUPREME COURT

2016 (4) TMI 613 - SUPREME COURT - TMI - Cognizance and issuance of summons in a case under Section 138 of the Negotiable Instruments Act, 1881 - Held that:- We have already noted earlier that the Order Sheet does not disclose any application of mind either to the issue of delay or to the requirement of Section 202, Cr.P.C. Since the order of the Magistrate issuing summons is clearly without due application of mind to the issue of delay, we have not gone into the detailed consideration of the co .....

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der of cognizance summoning the accused passed by the learned Magistrate. The Magistrate is directed to re-consider the relevant facts of the Complaint Case including the issue of delay and its condonation in accordance with law as well as the requirement of enquiry etc. under Section 202 of the Cr.P.C. and pass fresh orders in accordance with law. The appeals stand allowed to the aforesaid extent. - Criminal Appeal No(s). 247/2016 With Crl. A. No. 248/2016 - Dated:- 11-4-2016 - DIPAK MISRA AND .....

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cognizance and issuance of summons in a case under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the Act ) has been rejected by a very short and summary order to the effect that submissions were not impressive and if the appellant has any sustainable ground of defence, he can canvass the same before the Magistrate. 2. The appellant is an accused in two cases of similar nature wherein cheques issued by the accused person in favour of the complainant have not been .....

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t that was not done. The second grievance of the appellant is that cognizance could not have been taken without complying with the mandate of Section 200 of the Cr.P.C. and examining the complainant on solemn affirmation. The last submission of learned senior counsel for the complainant, Mr. K. Radhakrishnan is that the appellant being an accused and a resident of an area outside the territorial jurisdiction of the Magistrate who has issued summons, an enquiry within the meaning of Section 202 o .....

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nding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code. (2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein. 4. The non obstante clause in sub-sect .....

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. No doubt this judgment was in a different factual scenario but this Court went into details of the amendment of 2002 including Section 145 and in paragraph 18 it also noted the Statement of Objects and Reasons appended to the Amendment Bill. Inter alia, the objects included to prescribe procedure for dispensing with preliminary evidence of the complainant . 5. In view of discussion made above, the plea based on Section 200 of the Cr.P.C. is rejected as untenable. The other plea relating to del .....

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reply denying his liability through a reply dated 20.02.2006. The complaint was filed on 24.05.2006. Prima facie, in view of aforesaid dates the complaint was beyond the permissible period. No doubt the court has been empowered to take cognizance even after the prescribed period but only if the complainant satisfies the court that he had sufficient cause for not making complaint within the prescribed period. 6. On the basis of Order Sheet of the court of Magistrate it has been shown that initia .....

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at a place beyond his jurisdiction and therefore an enquiry or investigation may be required on account of amendment in Section 202 of the Cr.P.C. inserted by the Act 25 of 2005, effective from 23.06.2006. The relevant part of Section 202 is reproduced hereinbelow : "202. Postponement of issue of process.-(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, and sh .....

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ent has a purpose in requiring the concerned Magistrate to postpone the issue of process against the accused if he is residing at a place beyond the area of his jurisdiction and to hold an enquiry or direct an investigation by a police officer or any other person for the purpose of deciding whether or not there is sufficient ground for proceeding. It is to avoid unnecessary harassment to the proposed accused. In such an enquiry, the Magistrate may take evidence of witness on oath but in view of .....

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