9911796707
TMI Blog2024 (9) TMI 917X X X X Extracts X X X X X X X X Extracts X X X X ..... ing an enquiry under Section 202 of the CrPC and fixed a date for cross-examination of P.W. 1. 3. The sum and substance of the case is that the OP No. 2 being the Director of the Company, namely, West Bengal Essential Commodities Supplies Corporation Limited has filed a petition of complaint under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 (in short 'NI Act') to the Court of Learned Metropolitan Magistrate, 16th Court at Calcutta against the petitioner herein. 3a. The complainant has alleged, inter alia, that the petitioner no. 1 being the Director of M/s. Gems Refineries (1997) Private Limited having its office at 14, P.N. Banerjee Road, P.O. and P.S. - Budge Budge, District - South 24 Parganas, Pin Code No. 743319 has issued 22 cheques of different amounts on the different dates aggregating to a sum of Rs. 5,17,00,000/- only in favour of the complainant to discharge its existing liabilities which was accrued out of business transaction between the accused and the complainant. 3b. Those cheques were presented on 9th and 12th September, 2005 with the Central Bank of India, New Market Branch having its office at New Market, P.S. - New Market at Calc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 for insisting on the evidence of the witnesses to be taken on oath. Consequently, it was held that Section 202(2) CrPC is inapplicable to complaints under Section 138 in respect of the examination of witnesses on oath. The Court held that 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 and in suitable cases the Magistrate can examine documents to be satisfied that there are sufficient grounds for proceeding under Section 202. The same view has been reflected in Sunil Todi & another's case passed on 03.12.2021 by Hon'ble Apex Court. 12. In the present case, the Ld. Mag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Trial Magistrate praying for enquiry under Section 202 of the CrPC which is mandatory in nature but despite the said facts, the Learned Trial Magistrate failed to cure such illegality for salvation of justice. It is also incumbent duty of the Learned Magistrate to rectify such error when the application has been filed by the petitioner but the same was rejected. Not only that, the Learned Magistrate failed to rectify such error even indicated by the petitioner. The Learned Chief Judge also failed to consider the observation of the Hon'ble Apex Court passed in a case K.S. Joseph Vs. Philips Carbon Block Limited reported in (2017) 1 SCC (Cri) 270 wherein the Hon'ble Apex Court held that "Postponement of issue of process by Magistrate - Purpose of - Held, is to avoid unnecessary harassment to proposed accused - Complaint regarding dishonour of cheque under S. 138, NI Act - Plea of appellant-accused, that he being resident of area outside territorial jurisdiction of Magistrate who issued summons, an enquiry within meaning of S. 202 CrPC was mandatory, and since that was not done, order of cognizance and issuance of summons was bad in law". 4b. The learned counsel further placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l) no(s). 2135/2022). 5. Per contra, the learned counsel appearing on behalf of the opposite parties vociferously opposed the submission made by the learned counsel appearing on behalf of the petitioner and further argued that the judgments referred by the learned counsel for the petitioner are not at all applicable in the present facts and circumstances of the case. In the present case, complainant is a Public Servant and had filed complaint under Section 138 read with Section 142 of the N.I. Act, 1881 and in those cases, Sections 200 and 202 of the CrPC are not even applicable, when complaint filed by the Public Servant with an affidavit pursuant to Section 145 of the N.I. Act, 1881. It is true that Section 202 of the CrPC was amended for conducting an enquiry before issuing of process which came into effect from 23.06.2006 but such enquiry is not at all applicable if requisite satisfaction can be obtained by the Learned Magistrate from the materials available on the record. Rather, the judgment in Re: expeditious trial of cases under Section 138 of the NI Act, 1881 referred by the learned counsel appearing on behalf of the petitioner is not applicable in the present facts and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to another Magistrate under section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them. Section 201-Procedure by Magistrate not competent to take cognizance of the case. -If the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall, (a) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect; (b) if the complaint is not in writing, direct the complainant to the proper Court. Section 19 of the Criminal Procedure (Amendment) Act, 2005 has been promulgated by the legisl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground for proceeding, and the case appears to be- (a) a summons-case, he shall issue his summons for the attendance of the accused, or (b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. (2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed. (3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint. (4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. (5) Nothing in this section shall be deemed to affect the provisions of section 87." Section 145 of the Negotiable Instruments Act, 1881 reads as under: "Section 145-Evidence on affidavit. - (1) Notwithstanding anything contained in the Code o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. P. C. Bose reported in AIR 1963 SC 1430 a four Judges Bench of the Hon'ble Supreme Court considered Section 202 of the old Criminal Procedure and held as under: - 8. . . . the object of the provisions of Section 202 (corresponding to present Section 202 of the Code), was to enable the Magistrate to form an opinion as to whether process should be issued or not and to remove from his mind any hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath. 64. The Hon'ble Supreme Court while considering the objects underlined the provisions of Section 202 Cr.P.C. in Manharibhai Muljibhai Kakadia & Anr. (2012 AIR SCW 5314, para 23) (supra) and made the following observations: - "20. Section 202 of the Code has twin objects; one, to enable the Magistrate to scrutinize carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an unnecessary, frivolous or meritless complaint and the other, to find out whether there is some material to support the allegations made in the complaint. The Magistrate has a duty to elicit all fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complainant without at all adverting to any defense that the accused may have. 66. In Vijay Dhanuka (2014 AIR SCW 2095, paras 13 and 14) (supra), it has been held that under Section 200, Cr. P.C, examination of complainant only is necessary with the option of examining the witnesses present, if any, whereas in enquiry under Section 202 Cr. P.C., the witnesses are examined for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused. The relevant portion of the above decision is set out below: 17. In view of our answer to the aforesaid question, the next question which falls for our determination is whether the learned Magistrate before issuing summons has held the inquiry as mandated under Section 202 of the Code. The word "inquiry" has been defined under Section 2 (g) of the Code, the same reads as follows: "2. xxx xxx xxx (g) "inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court; xxx xxx xxx". It is evident from the aforesaid provision, every inquiry other than a trial conducted by the Magistrate or Court is an inquiry. No specific mode or manner of inquiry is provided under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is sufficient ground for proceeding against the accused, is nothing but an inquiry envisaged under Section 202 of the Code. 15. In the present case, as we have stated earlier, the Magistrate has examined the complainant on solemn affirmation and the two witnesses and only thereafter he had directed for issuance of process. 68. Therefore, keeping in mind the object sought to be achieved by way of amendment of sub-section (1) of Section 202, Cr.P.C., the nature of enquiry as indicated in Section 19 of the Criminal Procedure (Amendment) Act, 2005, the Magistrate concerned is to ward of false complaints against such persons who reside at far of places with a view to save them for unnecessary harassment and the Learned Magistrate concerned is under obligation to find out if there is any matter which calls for investigation by Criminal Court in the light of the settled principles of law holding an enquiry by way of examining the witnesses produced by the complainant or direct an investigation made by a police officer as discussed hereinabove." The Hon'ble Division Bench of this court finally came to conclusion and answered in following manner in paragraph 100 of the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de 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." 32. Under Sub-Section (1) of Section 202, a Magistrate upon the receipt of a complaint of an offence of which he/she is authorized to take cognizance is empowered to postpone the issuance of process against the accused and either (i) enquire into the case; or (ii) direct an investigation to be made by a police officer or by such other person as he thinks fit. The purpose of postponing the issuance of process for the purposes of an enquiry or an investigation is to determine whether or not there is sufficient ground for proceeding. However, it is mandatory for the Magistrate to do so in a case where the accused is residing at a place beyond the area in which the Magistrate exercises jurisdiction. The accused persons in the present case reside at Aurangabad while the complaint under Section 138 was filed before the Magistrate in Mundra. The argument of the appellants is that in these circumstances, the Magistrate was duty bound to postpone the issuance of process and to either e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is mandatory or not. 12. The words 'and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction' were inserted by Section 19 of the Code of Criminal Procedure (Amendment) Act (Central Act 25 of 2005) w.e.f. 23-6-2006. The aforesaid amendment, in the opinion of the legislature, was essential as false complaints are filed against persons residing at far-off places in order to harass them. The note for the amendment reads as follows: 'False complaints are filed against persons residing at far-off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause seeks to amend sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction, he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused.' The use of the expression "shall" prima facie makes the inquiry or the investigation, as the case may be, by the Magistrate mandat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 190(1)(a) CrPC followed by Section 204 CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed or not under Section 204 CrPC or whether the complaint should be dismissed by resorting to Section 203 CrPC on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any. At the stage of enquiry under Section 202 CrPC, the Magistrate is only concerned with the allegations made in the complaint or the evidence in support of the averments in the complaint to satisfy himself that there is sufficient ground for proceeding against the accused." Hence, the Court held: "33. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The application of mind has to be indicated by disclosure of mind on the satisfaction. Considering the duties on the part of the Magistrate for issuance of summons to the accused in a complaint case and that there must be sufficient indication as to the application of mind and observing that the Magistrate is not to act as a post office in taking cognizance of the complaint, in Mehmood Ul Rehman [Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420: (2016) 1 SCC (Cri) 124]..." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrate 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 Carbon Black Ltd & Anr. (AIR 2016 SC 2149). where there was a discussion about the requirement of inquiry under Section 202 of the Code in relation to complaints filed under Section 138 but the question of law was left open. In view of the judgments of this Court in Vijay Dhanuka (supra), Abhijit Pawar (supra) and Birla Corporation (supra), the inquiry to be held by the Magistrate before issuance of summons to the accused residing outside the jurisdiction of the court cannot be dispensed with. The l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finds that the Learned Chief Metropolitan Magistrate has carefully perused the complaint supported by an affidavit and documents, taken cognizance and further transferred the case to Learned Metropolitan Magistrate, 16th Court for enquiry and disposal under Section 192 (1) CrPC. 11. On 13.03.2006, the complainant was examined by the Learned Metropolitan Magistrate under Section 200 of the CrPC and adverted to: (a) The complaint; (b) The affidavit filed by the complainant; (c) The original documents in support of the complaint; (d) The submissions of the Ld. advocate for the complainant. And finally satisfied that there are sufficient grounds for proceeding against the accused person under Section 138 read with Section 142 of the N.I. Act, 1881 and issued summon to the accused person. Moreover, accused person appeared through his learned Advocates. On 12.09.2019, a plea under Section 251 of the Code of Criminal Procedure was taken and the matter was fixed for evidence. The complainant was examined on 04.12.2019 and 20.01.2021 and the matter was fixed for cross-examination. Thereafter, at the stage of cross-examination, the accused person filed petition after more than a y ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
