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TMI Blog2023 (3) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... ase is that the opposite party lodged a complaint against the petitioner stating that the accused no. 1 is a company having its office at C-636, DSIDC, Industrial Area, Narela, Delhi- 110040 and is engaged in the business of Import and Export of goods and the accused nos. 2 and 3 are the directors of the accused no. 1 company and both of them look after day to day business affairs of the accused no. 1 and they are the persons who are fully aware and responsible for the commission of the said offence. The complainant company had issued a cheque of Rs. 1,00,00,000/- (One Crore only) favouring the accused no. 1 towards loan and the said cheque was duly received, encashed and appropriated by the accused persons. That as per mutually agreed te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Complainant Company as filed by them, the learned 6th Metropolitan Magistrate, Calcutta was pleased to issue process against your petitioners vide order dated 24.02.2016 under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881. Petitioner states that the allegations made in the complaint are fabricated, false, without any basis and do not constitute the ingredients of the alleged offences so far as the present petitioner is concerned. The petition of complaint does not fulfill the essential ingredients of Section 141 of the Negotiable Instruments Act, 1881. The petition of complaint has failed to mention the specific role of the petitioner in order to link the petitioner to the offence as alleged in the complaint. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. The said mandate of law has to be complied with care and caution and not to be treated as an empty formality. Mr. Ayan Bhattacharya, learned counsel for the petitioner has submitted that the allegations made in the petition of complaint are fabricated, false, without any basis and do not constitute the ingredients of the alleged offences. The petition of complaint does not make any specific averment against your petitioner. The complaint does not make out any case, much less a prima facie case, a condition precedent to set the criminal law in motion. The learned Magistrate, without adverting as to whether the allegations in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court, Calcutta The only address of the petitioner is of New Delhi. Section 200 Cr.P.C. lays down:- "200. Examination of complainant.-A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses- (a) if a public servant acting or- purporting to act in the discharge of his official duties or a court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub- section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer- in- charge of a police station except the power to arrest without warrant." The proceedings in this case is under Section 138 of the Negotiable Instruments Act. A Five Judge Bench of the Supreme Court in expeditious trial of cases (for proceedings u/s 138 N.I. Act), on April 16, 2021 has held in respect of compliance of the provision under Section 202 Cr.P.C. in such cases as follows:- "12. Another point that has been brought to our notice relates to the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of speeding up trials in complaints filed under Section 138. If the evidence of the complainant may be given by him on affidavit, there is no reason for insisting on the evidence of the witnesses to be taken on oath. On a holistic reading of Section 145 along with Section 202, we hold that Section 202 (2) of the Code is inapplicable to complaints under Section 138 in respect of examination of witnesses on oath. The evidence of witnesses on behalf of the complainant shall be permitted on affidavit. If the Magistrate holds an inquiry himself, it is not compulsory that he should examine witnesses. In suitable cases, the Magistrate can examine documents for satisfaction as to the sufficiency of grounds for proceeding under Section 202." In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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