2017 (12) TMI 778 - HC - Indian Laws

Supervisory jurisdiction - failure to follow mandatory provisions of Section 202 of the Code of Criminal Procedure - Held that - in accordance with scheme of the said Act, the enquiry contemplated under Section 202 of the Code of Criminal Procedure is not mandatory in proceeding under Section 138 of the Negotiable Instrument Act - petition dismissed.

Summary

Issues:
Challenge to judgment and order dated 6th May, 2017, invoking supervisory jurisdiction under Article 227 of the Constitution of India. Compliance with mandatory provisions of Section 202 of the Code of Criminal Procedure before issuing process for the offence under Section 138 of the Negotiable Instruments Act.

Analysis:

Issue 1: Challenge to Judgment and Order
The petitioner challenged the judgment and order dated 6th May, 2017, passed by the Learned Additional Sessions Judge, Aurangabad, confirming the order dated 16th November, 2016, passed by the Judicial Magistrate, First Class, Aurangabad. The petitioner invoked the supervisory jurisdiction under Article 227 of the Constitution of India. The factual matrix involved the accused requesting the complainant to start a business in partnership, leading to financial transactions and subsequent dishonored cheques, resulting in a complaint under Section 138 of the Negotiable Instruments Act.

Issue 2: Compliance with Section 202 of CrPC
The petitioner contended that before issuing process, the Magistrate failed to follow the mandatory provisions of Section 202 of the Code of Criminal Procedure. The petitioner argued that since the accused resided beyond the jurisdiction of the trial Court, an enquiry under Section 202 was necessary. However, the Courts observed that for complaints under Section 138 of the Negotiable Instruments Act, it is not mandatory to conduct an enquiry under Section 202 of the Code of Criminal Procedure. Various judgments, including decisions of the Supreme Court and the High Court, were cited to support this position, emphasizing that the object of the Act would be defeated if such an enquiry were held mandatory.

In conclusion, the Court dismissed the challenge to the judgment and order, stating that the enquiry under Section 202 of the Code of Criminal Procedure is not mandatory in proceedings under Section 138 of the Negotiable Instruments Act. The Court relied on previous decisions and upheld the order passed by the Magistrate issuing process and the Sessions Court dismissing the revision application. Consequently, Criminal Writ Petition No. 997 of 2017 was dismissed.