TMI Blog2021 (8) TMI 1350X X X X Extracts X X X X X X X X Extracts X X X X ..... tu 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court issued notices on 15/06/2017 and granted interim stay to the proceedings before the Magistrate. An attempt at mediation resulted in failure. On 25/01/2018, this Court granted Rule in the present application and the interim stay was continued. The record shows that non-applicant No. 2 (original complainant) is represented by an Advocate. But, when the application is called out for hearing today, none has appeared on behalf of non-applicant No. 2. The cause list, for today, specifically carries a note that final hearing matters at Sr. Nos. 211, 215, 216, 225 to 228 shall not be adjourned on any ground. The present application is listed at Sr. No. 215 and it is taken up for final hearing. 4. Mr. Khemuka, the learned counsel has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merely by recording that the complaint, verification statements and the documents filed along with the complaint were perused. 5. Mr. A.R. Chutake, learned APP has appeared on behalf of the non-applicant-State. 6. As noted above, although represented by counsel, non-applicant No. 2 is not represented today by any counsel at the stage of final hearing. 7. 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 aforesai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 9. In view of the above, the application is partly allowed. 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. 10. The Magistrate may now proceed to deal with the complaint filed by non-applicant No. 2, in accordance with law. 11. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
