TMI Blog2023 (7) TMI 1105X X X X Extracts X X X X X X X X Extracts X X X X ..... d only thereafter, having been satisfied that prima facie case existed against the accused persons, had issued summons to the accused persons. Having considered the same, this Court does not find any illegality or perversity in the impugned order as far as conformity of the same with Section 202 of Cr.P.C. is concerned, especially in light of the judicial precedents of Hon ble Apex Court. Jurisdiction - HELD THAT:- It is not in dispute that the cheque in question was presented by the complainant/ respondent no. 1 at HDFC Bank,Kailash Building, No. 26, Kasturba Gandhi Marg, New Delhi-110001 which is situated within the territorial jurisdiction of Delhi and the cheque had got dishonoured upon presentation with the said bank. Thus, the courts in Delhi would have the jurisdiction to try the present complaint. Next claim is petitioner no. 2 and 3 had resigned from the accused firm before the issuance of cheque in question dated 06.02.2018 and its subsequent dishonor on 26.02.2018 - HELD THAT:- This Court can reach only one conclusion that the issues raised before this Court are all triable issues, which would require detailed consideration of the documents as per law, which ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 138 read with Section 141 of the Negotiable Instruments Act, 1881. 2. The petitioners herein have been arraigned as accused no. 3 to 5 in the complaint under Section 138 of Negotiable Instruments Act filed by respondent no. 1. Brief facts of the present case, as disclosed from the complaint, are that accused no.2 to 5 had approached the complainant and had requested for grant of a loan of Rs. 70,00,000/- for the purpose of developing the land at Hastinapuram, Chennai. Accordingly, a loan agreement dated 20.03.2014 for Rs. 70,00,000/- was entered into between the complainant and accused no. 1 i.e. M/s. Malar Homes represented by accused no. 2. Subsequently, the accused persons had defaulted in payment of principal amount as well as the interest on the above-mentioned loan amount. After regular follow ups and requests by the complainant, the accused persons had issued a cheque bearing no. 452597 of Rs. 1,32,00,000/- (Rupees One Crore and Thirty-Two Lakhs) dated 06.02.2018, drawn on Punjab National Bank, Tiruchirapalli, Tamil Nadu to the complainant towards discharge of principal debt liability including accrued interest. Following that, the complainant had presented the said cheq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed any document on record which can clearly substantiate their ground of having retired from the partnership firm and the retirement deed being relied upon them appears to be manipulated in view of different dates mentioned therein.It is also stated that as per Section 63 of the Indian Partnership Act, 1932, when a partnership firm is reconstituted,the information has to be given to the Registrar, which has not been shown to be complied with by the petitioners in the present case. It is argued that Section 202 of Cr.P.Cis not applicable to the proceedings initiated under Section 138 of Negotiable Instruments Act.Lastly, it is stated that enforcement of mortgage deed is a civil remedy whereas proceedings under Section 138 of Negotiable Instruments Act for dishonour of cheque is a criminal liability or remedy. It is, therefore, stated that the contentions raised before this Court by the petitioners are all triable issues and the present petition deserves to be dismissed. 5. The arguments addressed by both sides have been heard and the material on record has been perused. 6. Firstly, in the present case,the primary contention raised on behalf of petitioners is that the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lace in Section 202. Section 204 which deals with the issuance of process stipulates that if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, he may issue (a) in a summons case, a summons for attendance of the accused; (b) in a warrant case, a warrant or if he thinks fit a summons for the appearance of the accused. These proceedings have been interpreted in several judgments of this Court. For the purpose of the present case, some of them form the subject matter of the submissions by the appellants and the second respondent. *** 41. While noting that the requirement of conducting an enquiry or directing an investigation before issuing process is not an empty formality, the Court relied on the decision in Vijay Dhanuka which had held that the exercise by the Magistrate for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused is nothing but an enquiry envisaged under Section 202 of the Code. 42. In Birla Corporation Ltd. v. Adventz Investments and Holdings, the earlier decisions which have been referred to above were cited in the course of the judgment. The Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ides beyond the area of jurisdiction of the court. (See : Vijay Dhanuka v. Najima Mamtaj1, Abhijit Pawar v. Hemant Madhukar Nimbalkar and Birla Corporation Limited v. Adventz Investments and Holdings Limited). There has been a divergence of opinion amongst the High Courts relating to the applicability of Section 202 in respect of complaints filed under Section 138 of the Act. Certain cases under Section 138 have been decided by the High Courts upholding the view that it is mandatory for the Magistrate to conduct an inquiry, as provided in Section 202 of the Code, before issuance of process in complaints filed under Section 138. Contrary views have been expressed in some other cases. It has been held that merely because the accused is residing outside the jurisdiction of the court, it is not necessary for the Magistrate to postpone the issuance of process in each and every case. Further, it has also been held that not conducting inquiry under Section 202 of the Code would not vitiate the issuance of process, if requisite satisfaction can be obtained from materials available on record. 11. The learned Amici Curiae referred to a judgment of this Court in K.S. Joseph v. Philips C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an accused resides outside the jurisdiction of the Court, is not required to examine the witness on oath for conducting the enquiry as contemplated under Section 202 of Cr.P.C., rather can itself advert to the documents and evidence by way of affidavit filed on record by the complainant and reach a satisfaction as to whether the accused should be summoned or not. 8. A perusal of the impugned order reveals that the learned MM has considered the contents of the complaint, the documents annexed thereto, the affidavit filed by the complainant as well as the submissions made by the learned counsel for the complainant and only thereafter, having been satisfied that prima facie case existed against the accused persons, had issued summons to the accused persons. Having considered the same, this Court does not find any illegality or perversity in the impugned order as far as conformity of the same with Section 202 of Cr.P.C. is concerned, especially in light of the judicial precedents of Hon ble Apex Court discussed above. 9. Secondly, as regards the issue of jurisdiction, it is not in dispute that the cheque in question was presented by the complainant/ respondent no. 1 at HDFC Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to corroborate their version of having resigned by virtue of above-mentioned Partnership Retirement and Reconstitution Deeds. 13. In view of the aforesaid facts and circumstances, this Court can reach only one conclusion that the issues raised before this Court are all triable issues, which would require detailed consideration of the documents as per law, which may include all the relevant document pertaining to the resignations if any of the petitioners, and as to what role they had in issuance of cheque in question and dishonour of the same. 14. However, as prima facie apparent from the records of the case, the complainant in the complaint under Section 138 of Negotiable Instruments Act has specifically averred that the accused firm represented by its Managing Director i.e. accused no. 2along with the other accused persons, including the petitioners, had approached the complainant for grant of loan and all the partners in connivance with each other had issued the cheque in question for repayment of the said loan. It was also averred that the present petitioners were active partners of the accused firm and, thus, were liable for the issuance as well as dishonour of the cheq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learly lays down that if the accused is able to prove to the satisfaction of the Court that the offence was committed without his/her knowledge or he/she had exercised due diligence to prevent the commission of such offence, he/she will not be liable of punishment. *** d.) If any Director wants the process to be quashed by filing a petition under Section 482 of the Code on the ground that only a bald averment is made in the complaint and that he/she is really not concerned with the issuance of the cheque, he/she must in order to persuade the High Court to quash the process either furnish some sterling incontrovertible material or acceptable circumstances to substantiate his/her contention. He/she must make out a case that making him/her stand the trial would be an abuse of process of Court. ( Emphasis supplied ) 16. In view thereof, having found no reasons to interfere with the impugned summoning order, the present petition stands dismissed. Pending applications, if any, are also dismissed accordingly. 17. It is however clarified that the observations made herein-above are for the sole purpose of deciding the present petition and the same shall not have any ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
