2014 (8) TMI 1213 - HC - Indian Laws

Dishonor of Cheque - territorial jurisdiction - accused resides beyond the territorial jurisdiction of the concerned Magistrate - non-conduct of mandatory enquiry under Section 202 Cr.P.C. before issuing process to the accused - HELD THAT - The object of the provisions of Section 202 Cr.P.C. is to enable the learned Magistrate to form an opinion as to whether process should be issued or not - The enquiry envisaged under Section 202(1) Cr.P.C. is only for finding out whether or not there are sufficient grounds for proceeding against the accused. Therefore if on the existing materials it is not possible for the Magistrate to take cognizance of the offence he can direct an enquiry under Section 202 Cr.P.C. However if the materials existing are sufficient there is no impediment for the Magistrate to take cognizance of the offence and issue process against the accused without holding any such enquiry. In the present case the complainant has filed the complaint along with the relevant documents including the original cheque document with regard to the return of the same as dishonoured by the drawee bank notice issued by the complainant to the accused documents showing receipt of the same by the accused and the initial statement in form of affidavit in support of the allegations made in the complaint. Learned Magistrate has duly considered the said materials on record in taking cognizance of the offence under Section 138 N.I. Act and directing issuance of process to the accused-petitioner. In A.C. Narayanan v. State of Maharashtra 2013 (9) TMI 948 - SUPREME COURT the Hon ble Supreme Court while dealing with the question whether the proceeding contemplated under Section 200 Cr.P.C. can be dispensed with in the light of Section 145 of the N.I. Act which was introduced by way of amendment in the year 2000 has observed that In the light of section 145 of N.I Act it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the N.I Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the N.I. Act. There are no infirmity in the impugned order of the learned Magistrate taking cognizance of the offence under Section 138 N.I. Act and directing issuance of process to the accused-petitioner so as to warrant any interference - appeal dismissed.

Summary

Issues:
1. Jurisdictional challenge based on residence of accused.
2. Mandatory requirement of enquiry under Section 202 Cr.P.C.
3. Validity of order of cognizance under Section 138 of the Negotiable Instruments Act.
4. Interpretation of Section 202 Cr.P.C. and its limited scope.
5. Applicability of recent judgments on the procedure for cases under Section 138 N.I. Act.

Issue 1: Jurisdictional challenge based on residence of accused:
The petitioner challenged the order of cognizance due to residing in a location beyond the territorial jurisdiction of the Magistrate. The contention was that as per Section 202(1) Cr.P.C., an enquiry was mandatory before taking cognizance. The petitioner relied on a decision stating non-compliance of Section 202(1) Cr.P.C. vitiates the order.

Issue 2: Mandatory requirement of enquiry under Section 202 Cr.P.C.:
The key question was whether an enquiry under Section 202 Cr.P.C. is mandatory when the accused resides outside the Magistrate's jurisdiction. The purpose of this provision is to ascertain if there is sufficient evidence to proceed against the accused. The Magistrate can take cognizance without an enquiry if existing materials support it.

Issue 3: Validity of order of cognizance under Section 138 of the Negotiable Instruments Act:
The Magistrate considered the complaint, relevant documents, and affidavit before taking cognizance under Section 138 N.I. Act. The accused challenged this order, arguing that the absence of an enquiry under Section 202 Cr.P.C. rendered the cognizance invalid.

Issue 4: Interpretation of Section 202 Cr.P.C. and its limited scope:
The Court clarified that the purpose of the enquiry under Section 202(1) Cr.P.C. is to determine if there are sufficient grounds to proceed against the accused. The Magistrate's decision to take cognizance without an enquiry is permissible if the existing materials establish a prima facie case.

Issue 5: Applicability of recent judgments on the procedure for cases under Section 138 N.I. Act:
Recent judgments, including one from the Supreme Court, emphasized the importance of efficient procedures for cases under Section 138 N.I. Act. The Court highlighted directions for speedy disposal, such as scrutinizing complaints promptly, issuing summons effectively, and conducting examinations within specific timelines.

In conclusion, the Court dismissed the challenge to the order of cognizance under Section 138 N.I. Act. It found no infirmity in the Magistrate's decision, citing the settled legal position and recent judgments guiding the procedural aspects of cases under this Act. The Court emphasized the need for expeditious disposal of such cases, following specific procedures outlined for efficient handling.