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2013 (11) TMI 1473 - SC - Indian LawsMaintainability of Petition u/s 138 of Negotiable Instruments Act at Mumbai - Power of Magistrate to recall process of summons u/s 201 of Criminal Procedure Code Summons issued under Section 204 by the Magistrate Jurisdiction of Magistrate to issue summons - Held that - The Magistrate is required to issue summons for attendance of the accused only on examination of the complaint and on satisfaction that there is sufficient ground for taking cognizance of the offence and that it is competent to take such cognizance of offence - Once the decision is taken and summon is issued, remedy lies before the High Court under Section 482 Cr. P.C or under Article 227 of the Constitution of India and not before the Magistrate - Relying upon Adalat Prasad vs. Rooplal Jindal and others 2004 (8) TMI 647 - SUPREME COURT - Section 201 can be applied immediately on receipt of a complaint, if the Magistrate is not competent to take cognizance of the offence - Once the Magistrate taking cognizance of an offence forms his opinion that there is sufficient ground for proceeding and issues summons under Section 204 - there is no question of going back following the procedure under Section 201 - In absence of any power of review or recall the order of issuance of summons, the Magistrate cannot recall the summon in exercise of power under Section 201. Relying upon M/s. Escorts Limited vs. Rama Mukherjee 2013 (11) TMI 95 - SUPREME COURT - offence under Section 138 of the Act can be completed only with the concatenation of all the components and for that it is not necessary that all the above five acts should have perpetrated at the same locality; it is possible that each of those five acts were done at five different localities, but a concatenation of all the above five is a sine qua non for the completion of the offence under Section 138 of the Act. Maintainability of Petition u/s 138 of Negotiable Instruments Act at Mumbai - Goods supplied from Mumbai to Delhi Held that - The High Court erred in concluding that the courts at Delhi, did not have the jurisdiction to try the petition filed by the appellant under Section 138 of the Negotiable Instruments Act - The business dealing was held at Mumbai; the products were supplied from Mumbai to New Delhi, cheques were handed over at Mumbai and the cheques were dishounoured by the bankers of respondents at New Delhi, and legal notice was issued from Mumbai - Thus, at least one act out of the five ingredients of Section 138 of the Act having committed at Mumbai, the complaint preferred by the complainant before the Magistrate at Mumbai was maintainable Decided in favour of Appellant.
Issues Involved:
1. Jurisdiction of the Magistrate to recall or review the order of issuance of summons under Section 204 Cr.P.C. by exercising power under Section 201 Cr.P.C. 2. Maintainability of the petition under Section 138 of the Negotiable Instruments Act at Mumbai. Detailed Analysis: 1. Jurisdiction of the Magistrate to Recall or Review the Order of Issuance of Summons: The primary issue was whether the Magistrate, after finding sufficient ground for proceeding and issuing summons under Section 204 Cr.P.C., has the jurisdiction to recall or review the order by exercising its power under Section 201 Cr.P.C. - Relevant Provisions: - Section 200 Cr.P.C.: Pertains to the examination of the complaint by the Magistrate. - Section 201 Cr.P.C.: Outlines the procedure if the Magistrate is not competent to take cognizance of the offence. - Section 202 Cr.P.C.: Allows for the postponement of the issue of process. - Section 203 Cr.P.C.: Allows the Magistrate to dismiss the complaint if there is no sufficient ground for proceeding. - Section 204 Cr.P.C.: Commencement of proceedings before the Magistrate by issuing process if there is sufficient ground for proceeding. - Court's Interpretation: - The Magistrate is required to issue summons only after examining the complaint and being satisfied that there is sufficient ground for taking cognizance of the offence. Once the summons is issued, the Magistrate lacks the power to recall or review the order in the absence of inherent power or a provision for review. - Precedent: In *Adalat Prasad vs. Rooplal Jindal and others*, it was held that the relief for an aggrieved accused lies in invoking Section 482 Cr.P.C. or Article 227 of the Constitution of India, rather than recalling the summons under Section 203 Cr.P.C. - Conclusion: The Court concluded that once the Magistrate issues summons under Section 204 Cr.P.C., there is no question of going back to follow the procedure under Section 201 Cr.P.C. Therefore, the first issue was answered in the negative and in favor of the appellant. 2. Maintainability of the Petition under Section 138 of the N.I. Act at Mumbai: The second issue was whether the petition under Section 138 of the Negotiable Instruments Act was maintainable at Mumbai based on the facts that goods were supplied from Mumbai to Delhi, cheques were handed over at Mumbai, and legal notice was issued from Mumbai. - Relevant Provisions and Precedents: - Section 138 of the N.I. Act: Specifies five components for the offence: drawing of the cheque, presentation to the bank, returning unpaid by the bank, giving notice in writing demanding payment, and failure to make payment within 15 days of the notice. - Precedent: In *K. Bhaskaran vs. Shankaran Vaidhyam Balan & Anr.*, it was held that the offence under Section 138 can be completed with the concatenation of the five acts, which can occur in different localities. The complainant can choose any one of the courts having jurisdiction over any of the localities where any of the acts were done. - Case Reference: In *M/s. Escorts Limited vs. Rama Mukherjee*, it was affirmed that the court where the dishonoured cheque was presented for encashment has jurisdiction. - Court's Interpretation: - The Court noted that the business dealings, supply of goods, and issuance of cheques occurred in Mumbai, and the legal notice was also issued from Mumbai. Thus, at least one act out of the five ingredients of Section 138 was committed in Mumbai. - Conclusion: The complaint was maintainable in Mumbai as per the provisions of Section 138 and the precedents cited. The second issue was answered in the affirmative and in favor of the appellant. Final Judgment: The Supreme Court set aside the order dated 6th December 2012 passed by the High Court, affirmed the order passed by the Sessions Judge, and allowed the appeals.
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