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TMI Blog2022 (11) TMI 1077X X X X Extracts X X X X X X X X Extracts X X X X ..... re into the order of the Magistrate dated 13.08.2019 by which the application for discharge has been rejected. Though multiple orders are under challenge, the grievance is about issuance of process in terms of Section 204 of the Code of Criminal Procedure (for short hereinafter referred to as 'the Code') relating to offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the N.I. Act'). 3. The petitioner who is an accused of Criminal Case No. 1075/SS/2017 has raised a challenge on the ground that the petitioners (accused) resides outside the territorial jurisdiction of the concerned Magistrate and therefore, in view of the amendment to Section 202 of the Code, the order of issuance of process without complying ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs' prime contention that in view of law laid down by the Supreme Court in case of Sunil Todi and others vs. State of Gujarat and anr. 2021 SCC OnLine SC 1174 inquiry under Section 202 of the Code is mandatory one. Moreover, it is submitted that the affidavit though filed by the respondent (complainant), it does not amount to an inquiry contemplated under Section 202 of the Code. 6. Having regard to the divergent opinions regarding requirement of inquiry under Section 202 of the Code, the Supreme Court in Suo Motu Writ Petition (CRL.) No. 2 of 2020 and in case of Sunil Todi (supra) has clarified that inquiry as per amended Section 202 of the Code is mandatory when the accused resides outside the jurisdiction of the Court. Moreover, it is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorizes a notary before whom the affidavit can be sworn. Thus, there is no legal impediment in filing affidavit which is sworn before the notary public. 8. Learned Counsel appearing for the petitioners would submit that on the date of filing of criminal complaint, it was not accompanied by the affidavit, however it was subsequently filed on 10.08.2017 and therefore, the complaint is not tenable. In other words, he would submit that the Magistrate was not empowered to take cognizance of the complaint in absence of affidavit. It reveals from the Roznama that the criminal complaint was filed on 08.06.2017 on which it was postponed on 11.08.2017 for verification. The record indicates that prior to 11.08.2017 i.e. on 10.08.2017 itself affidav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2022 (K & K Foundery Pvt. Ltd. Thr. Its. Managing Director and Ors. vs. State of Maharashtra & Anr.) dated 10.03.2022, would submit that the order of issuance of process does not indicate reasons for passing an order of issuance of process and therefore, it is not tenable. Learned Counsel for the petitioner also relied on the decision of this Court in case of Rainbow Papers Limited and ors. vs. State of Maharashtra 2021 ALL MR (Cri) 3527. In said case the impugned order does not reflects that mandatory inquiry was conducted and therefore, on the basis of given facts the order of issuance of process was set aside. Being distinct facts, the said decision is of no assistance. 11. It is totally a factual aspect to see whether the Magistrate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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