2016 (4) TMI 613 - SC - Indian Laws

Cognizance and issuance of summons in a case under Section 138 of the Negotiable Instruments Act, 1881 - Held that - We have already noted earlier that the Order Sheet does not disclose any application of mind either to the issue of delay or to the requirement of Section 202, Cr.P.C. Since the order of the Magistrate issuing summons is clearly without due application of mind to the issue of delay, we have not gone into the detailed consideration of the correctness of submission based upon Section 202 of the Cr.P.C. and as to whether such requirement of enquiry or investigation is attracted even for offences under the Act. This question of law is therefore left open. But on the ground of non application of mind to the issue of delay and considering that the High Court has passed a summary order without even noticing the contentions advanced on behalf of the appellant, we set aside the impugned order of the High Court as well as the order of cognizance summoning the accused passed by the learned Magistrate. The Magistrate is directed to re-consider the relevant facts of the Complaint Case including the issue of delay and its condonation in accordance with law as well as the requirement of enquiry etc. under Section 202 of the Cr.P.C. and pass fresh orders in accordance with law. The appeals stand allowed to the aforesaid extent.

Summary

Issues:
1. Rejection of prayer to quash order of cognizance and issuance of summons under Section 138 of the Negotiable Instruments Act, 1881.
2. Defence raised by the accused including delay in complaint, non-compliance with Section 200 of Cr.P.C., and jurisdictional issues.
3. Interpretation of Section 145 of the Act regarding evidence on affidavit.
4. Examination of complainant on solemn affirmation under Section 200 of Cr.P.C.
5. Delay in filing complaint and condonation of delay.
6. Postponement of issue of process against accused residing outside jurisdiction under Section 202 of Cr.P.C.

Analysis:
1. The High Court rejected the appellant's plea to quash the order of cognizance and issuance of summons under Section 138 of the Negotiable Instruments Act, 1881, advising the appellant to present his defence before the Magistrate. The appellant highlighted cheque bouncing due to stop payment direction and legal grounds related to delay, non-compliance with Section 200 of Cr.P.C., and jurisdictional issues.

2. The appellant's plea based on Section 200 of Cr.P.C. was dismissed as misconceived due to Section 145 of the Act allowing the complainant's evidence on affidavit. The delay of 62 days in filing the complaint was found to be substantial, requiring condonation if sufficient cause is shown.

3. The Court clarified the interpretation of Section 145 of the Act, emphasizing the complainant's right to present evidence on affidavit, thereby negating the necessity of examination on solemn affirmation under Section 200 of Cr.P.C. The judgment in Mandavi Cooperative Bank Ltd. v. Nimesh B. Thakore was cited to support this view.

4. The issue of delay in filing the complaint beyond the prescribed period was examined, requiring the Magistrate to consider if sufficient cause was shown for the delay. The lack of application of mind by the Magistrate on the delay and jurisdictional issues necessitated a re-consideration of the case.

5. The amendment in Section 202 of Cr.P.C. mandates the postponement of issuing process against an accused residing outside the jurisdiction, aiming to prevent unnecessary harassment. The Magistrate is required to conduct an enquiry or investigation to determine sufficient grounds for proceeding, with the complainant's evidence on affidavit being permissible.

6. The judgment highlighted the importance of natural justice in condoning delay beyond the limitation period, citing the case of P.K. Choudhury v. Commander, 48 BRTF (GREF). Additionally, the requirement of an enquiry or investigation under Section 202 of Cr.P.C. for accused residing outside jurisdiction was supported by the case of Vijay Dhanuka v. Najima Mamtaj. The lack of application of mind by the Magistrate led to the setting aside of the impugned order, directing a re-consideration of the case in accordance with the law.