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2018 (8) TMI 706 - HC - Indian LawsDishonor of cheque - Section 138 of the Negotiable Instruments Act, 1881 - case of petitioner is that the trial Court had taken cognizance of the complaint without taking recourse to inquiry under Section 202 of the Code of Criminal Procedure - Held that - In the case of Dr.(Mrs.) Rajul Ketan Raj 2016 (2) TMI 1140 - BOMBAY HIGH COURT , this Court after taking into consideration several decisions, has taken a view that it is not mandatory to hold the inquiry contemplated under Section 202 of Cr.P.C. The object of Section 200 of Criminal Procedure Code is to test whether the complaint makes out sufficient ground for the purpose of issuing process. The amended Sub-section (1) of Section 202 of Cr.P.C. makes it obligatory upon Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or such other person as he thinks fit, for finding out whether or not there is sufficient ground to proceed against the accused. Upon considering and analysing the object and ambit of Section 138 of N.I. Act vis-a-viz the objection of Sub-section (1) of Section 202 of Cr.P.C., the Court had observed that the provision may not apply to the provisions under Section 138 of Negotiable Instruments Act, and, merely because accused reside outside the jurisdiction of the Court, in each and every case it is not necessary for the Court to postpone the issue of process. In the present case, the trial Court has issued process on the basis of averment in the complaint, documents therein and the verification statement which do not require interference - petition is without any merit and is dismissed.
Issues:
- Challenge to the issuance of process under Section 138 of the Negotiable Instruments Act, 1881 without conducting an inquiry under Section 202 of the Code of Criminal Procedure (Cr.P.C). Analysis: 1. The petitioner was facing prosecution for an offence under Section 138 of the Negotiable Instruments Act, 1881, with proceedings pending before the Court of Judicial Magistrate, First Class, Solapur. The complainant alleged that the accused issued two cheques which were dishonoured, leading to the filing of a complaint on 9th October, 2015. 2. The petitioner challenged the process issuance by contending that the trial Court did not conduct an inquiry under Section 202 of Cr.P.C., as mandated. The petitioner argued that being a resident of Mumbai while the complaint was filed in Solapur, an inquiry was necessary before taking cognizance of the complaint. 3. The petitioner relied on various decisions to support the contention that an inquiry under Section 202 of Cr.P.C. is mandatory in cases under Section 138 of the Negotiable Instruments Act. In contrast, the respondents argued that such an inquiry is not obligatory for proceedings under Section 138. 4. The Court considered previous judgments, including the case of Dr.(Mrs.) Rajul Ketan Raj and Vijay Tata Ravipati, where it was held that an inquiry under Section 202 of Cr.P.C. is not mandatory for complaints under Section 138 of the Negotiable Instruments Act. The Court highlighted that the purpose of Section 200 of Cr.P.C. is to test the sufficiency of grounds for issuing process. 5. The Court emphasized that applying Section 202 of Cr.P.C. to complaints under Section 138 of the Negotiable Instruments Act would defeat the Act's purpose. It was observed that the Magistrate can exercise discretion in deciding whether to issue process, dismiss the complaint, or conduct further inquiry based on the facts and circumstances of each case. 6. Referring to previous judgments, the Court concluded that compliance with the provisions of Section 138 of the Negotiable Instruments Act is directory and not mandatory, aligning with the Act's expeditious disposal intent. The Court upheld the trial Court's decision to issue process based on the complaint and relevant documents, dismissing the Writ Petition. 7. Ultimately, the Court found the Writ Petition devoid of merit and dismissed it accordingly.
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