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2011 (11) TMI 785 - HC - Indian LawsOffence under NI Act - Held that - After perusing the contents of the complaint as also verification statement of the complainant the trial Magistrate ought to have postponed the issuance of process in the facts and circumstances of the case when accused were resident of a place beyond the jurisdiction of the learned trial Magistrate concerned. For this reason and considering the rulings cited before me, the impugned order must be held as unsustainable and, therefore, cannot be countenanced. The same is therefore, quashed and set aside. JMFC, Nagpur and Special Court under section 138 of the N.I. Act shall exercise discretion in accordance with amended provision of Section 202 Cr.P.C. and in the light of the rulings referred above. The complainant shall appear before the learned JMFC and Special Court u/s 138, on 5th December, 2011. The petition is allowed accordingly.
Issues: Jurisdiction of the trial Magistrate in issuing process under section 138 of the Negotiable Instruments Act (N.I. Act) without conducting an enquiry under section 202 of the Code of Criminal Procedure (Cr.P.C).
Analysis: The petitioners challenged the order of issuance of process dated 16.12.2010 by the Judicial Magistrate, First Class and Special Court under section 138 of the N.I. Act, alleging that the accused were residents of Mumbai and, therefore, outside the jurisdiction of the trial Magistrate at Nagpur. The petitioners argued that the Magistrate should have conducted an enquiry under section 202 of the Cr.P.C before issuing process, citing the ruling in K.T. Joseph vs. State of Kerala. They contended that the amended provision of section 202 of Cr.P.C makes such enquiry mandatory, especially when the accused reside beyond the Magistrate's jurisdiction. The petitioners relied on the Supreme Court's decision in K.T. Joseph, followed by the Bombay High Court's ruling in S.C. Mathur vs. Electronic Lab., to support their argument. Additionally, they referenced the case of Neelu Chopra vs. Bhatia to assert that the impugned order should be quashed for non-observance of the mandatory legal position. The respondents, on the other hand, argued that the order regarding issuance of process is revisable, and thus, the petition under section 482 should not be entertained. They referred to the ruling in Saul. Sangria vs. Sau. Surekha, highlighting different modes available to the Magistrate at the pre-cognizance stage under Cr.P.C. They pointed out that the provisions of section 156(3) and section 200 of Cr.P.C were relevant at the stage of taking cognizance, as mentioned in Devarapalli Reddy vs. Narayana Reddy. The respondents claimed that the ruling in K.T. Joseph was not brought to the notice of the Court in Sau. Sangita's case, regarding the amendment in section 202 of Cr.P.C for postponement of issuance of process when the accused reside beyond the Magistrate's jurisdiction. The Court, after considering the arguments from both sides, found that the complaint was filed in the Nagpur court, while all accused resided in Mumbai. It was noted that the trial Magistrate should have postponed the issuance of process in accordance with the mandatory provision under section 202 of Cr.P.C, as emphasized in the K.T. Joseph case. The Court held that the impugned order was unsustainable and set it aside, instructing the trial Magistrate to exercise discretion in line with the amended provision of section 202 of Cr.P.C and the cited rulings. The complainant was directed to appear before the court on a specified date, and the petition was allowed with no order as to costs.
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