TMI Blog2023 (2) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... Sunil Todi s case [ [ 2021 (12) TMI 175 - SUPREME COURT] ], the Hon ble Supreme Court in paragraph 47 has approved the manner in which the Magistrate proceeds to issue process after adverting to the complaint, the affidavit filed by the complainant, the evidence as per evidence list and the submissions of the complainant. By way of the present revisional application, the petitioners have not been able to show that the non-application of mind so contended in respect of the order issuing process has resulted in failure of justice because of false implication of any of the petitioners. The contention of the petitioners is definitely correct that the particular phrase relating to enquiry being conducted under Section 202 of the Code of Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is insufficient to implicate all the persons. Learned advocate has drawn the attention of the Court to paragraph 3 of the petition of complaint which is set out as follows : 3. That the accused persons has been residing and/or carrying on their business from the addresses as mentioned hereinabove in the cause title. The accused nos. 2 is the Authorised Signatory and Director and accused no.3 is the Director of the accused no.1 and are responsible for the day to day affairs of the accused no.1, which is a Limited company. Learned advocate for the petitioners also drew the attention of the Court to the order issuing process passed on 13.03.2020 by the learned Metropolitan Magistrate, 11th Court, Calcutta and emphasised that the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 2021 SCC OnLine Cal 1693 . Attention of the Court was drawn to paragraphs 16 and 19 of the said judgement which are quoted below : 16. The question whether Section 202 of the Code is mandatory in respect of a proceeding under Section 138 of the Negotiable Instruments Act or not is now well settled. In Re : Expeditious trial of cases under Section 138 of N.I. Act, 1881, reported in 2021 SCC OnLine SC 325, a Constitution Bench of the Hon'ble Apex Court, inter alia, held as follows: 24. The upshot of the above discussion leads us to the following conclusions: . 2) Inquiry shall be conducted on receipt of complaints under Section 138 of the Act to arrive at sufficient grounds to proceed against the accused, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Supreme Court in Sunil Todi and Others Vs. State of Gujarat and Another reported in 2021 SCC OnLine SC 1174. Learned advocate has referred to paragraphs 46 and 47 of the said judgement which are quoted below : 46. Section 145 of the NI Act provides that evidence of the complainant may be given by him on affidavit, which shall be read in evidence in an inquiry, trial or other proceeding notwithstanding anything contained in the CrPC. The Constitution Bench held that Section 145 has been inserted in the Act, with effect from 2003 with the laudable object of speeding up trials in complaints filed under Section 138. Hence, the Court noted that if the evidence of the complainant may be given by him on affidavit, there is no reason fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rger Bench differ in their findings, then according to the doctrine of precedents the findings of the Larger Bench is to be followed. I have considered the submissions of the learned advocates appearing for the parties both with regard to the continuation of the proceedings, the compliance of Section 202 of the Code of Criminal Procedure and the additional prayer advanced by Mr. Chatterjee, learned advocate for the petitioners regarding the proceedings to be quashed so far as the petitioner no.3 is concerned. So far as the first prayer advanced by the petitioners is concerned which refers to the orders passed by the Debts Recovery Tribunal as also the issues relating to the account closed and the averments made in the petition of comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order dated 13.03.2020. I have also taken into account the decision of the Hon ble Supreme Court in S.P. Mani and Mohan Dairy Vs. Dr. Snehalatha Elangovan reported in 2022 SCC OnLine SC 1238 and paragraph 47 of the decision of the Hon ble Apex Court in Sunil Todi s case (supra) where the final conclusions were summarized by the Hon ble Supreme Court. So far as the provision or compliance regarding Section 202 of the Code of Criminal Procedure is concerned, the finding in paragraph 12 of the Larger Bench of the Hon ble Supreme Court is in noway different and distinct from the observations made in paragraph 46 and 47 of Sunil Todi s case (supra). By way of the present revisional application, the petitioners have not been able to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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