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2020 (9) TMI 255 - HC - Indian LawsMaintainability of Revision - jurisdiction to take cognizance of offence - Dishonor of Cheque - summon trial - Section 142(2)(a) of the N.I. Act - petitioner would submit that both the Courts below are absolutely unjustified in rejecting the objection raised by the petitioner as Ms. Neha Usendi, J.M.F.C. Raipur had no jurisdiction to take cognizance of offence under Section 138 of the N.I. Act against the petitioner - HELD THAT - Both the Courts below have partly agreed with the petitioner/accused that cognizance of offence under Section 138 of N.I. Act could not have been taken by Ms. Neha Usendi, J.M.F.C. Raipur as she was conferred with the jurisdiction to try the cases based on N.I. Act arising from Khamtarai, Abhanpur, D.D. Nagar and Aamanaka Police Stations and the cognizance of offence ought to have been taken by Ms. Namrata Norge, J.M.F.C. Raipur as the offence under Section 138 of the N.I. Act alleged to have been committed by the petitioner/accused has arisen from Police Station Pandri and it lies within her jurisdiction, but both the Courts below have categorically held that taking cognizance of offence against the petitioner under Section 190(1)(a) of the Cr.P.C. by Ms. Neha Usendi, J.M.F.C. Raipur is only an irregularity which would not vitiate the proceedings in view of provision contained under Section 460(e) of the Cr.P.C. The provision contained in Section 460(e) of the Cr.P.C. saves proceedings before a Magistrate taken on complaint or on police report of which cognizance is taken erroneously and in good faith but without the Magistrate having the requisite power to take cognizance on such material and irregularities set out in Section 460 do not vitiate proceedings. It is quite vivid that in the instant case, admittedly, Ms. Neha Usendi, J.M.F.C. Raipur has taken cognizance of offence under Section 138 of the N.I. Act against the petitioner under Section 190(1)(a) of the Cr.P.C. though she was not empowered to do so in light of provision contained under Section 142(2)(a) of the N.I. Act read with the work division memo dated 02/08/2018 issued by the Chief Judicial Magistrate. It is not alleged by the petitioner that jurisdiction of taking cognizance under Section 190(1)(a) of the Cr.P.C. was exercised by Ms. Neha Usendi, J.M.F.C. Raipur in bad faith, though it has been argued that matter is not covered by Section 460(e) of the Cr.P.C., but in my considered opinion, cognizance of offence against the petitioner under Section 138 of the N.I. Act was taken by Ms. Neha Usendi, J.M.F.C. Raipur under Section 190(1)(a) of the Cr.P.C. in good faith and that too, erroneously therefore, it is squarely covered by Section 460(e) of the Cr.P.C. and thereby, proceeding would not vitiate, as such, the proceeding is not liable to be set aside and the same has rightly been held by the trial Magistrate which has rightly been affirmed by the revisional Court and it is hereby reaffirmed. The next contention of learned counsel for the petitioner is that cognizance of offence under Section 138 of the N.I. Act taken against the petitioner is also hit by virtue of Section 202(1) of the Cr.P.C. as the said provision is mandatory - HELD THAT - The Supreme Court in the matter of K.S. Joseph v. Philips Carbon Black Ltd. and Anr. 2016 (4) TMI 613 - SUPREME COURT has held that Section 145 of the N.I. Act, being non obstante clause overrides the requirement of examination of the complainant and complainant's evidence on affidavit will be sufficient. The present petition under Section 482 of the Cr.P.C. deserves to be and is accordingly dismissed.
Issues:
Jurisdiction of the trial court to take cognizance of the offence under Section 138 of the Negotiable Instruments Act, 1881. Analysis: The petitioner raised an objection based on Section 142(2)(a) of the N.I. Act, arguing that the trial court, Ms. Neha Usendi, J.M.F.C. Raipur, lacked jurisdiction to take cognizance of the offence as it arose from Police Station Pandri, falling under the jurisdiction of another court. The trial court rejected this objection, citing Section 460(e) of the Cr.P.C., stating that the irregularity did not warrant discharge of the accused. The revisional court upheld this decision, leading to the petitioner filing a petition under Section 482 of the Cr.P.C. Legal Precedents: Referring to Section 460(e) of the Cr.P.C., the court highlighted that irregularities in taking cognizance do not vitiate proceedings if done erroneously in good faith. Citing the case of Purshottam Jethanand v. The State of Kutch, the court emphasized that defects in taking cognizance can be cured if done in good faith. Additionally, the court referred to Willie (William) Slaney v. The State of Madhya Pradesh, where it was established that certain irregularities do not vitiate proceedings as per the Code. Judgment: The court analyzed the provisions of the Cr.P.C. and the N.I. Act, concluding that the trial court's erroneous but good faith cognizance of the offence under Section 138 of the N.I. Act did not warrant setting aside the proceedings. The court held that the trial court's decision, affirmed by the revisional court, was in line with legal principles and, therefore, reaffirmed. The petitioner's argument regarding Section 202(1) of the Cr.P.C. was also dismissed, citing the Supreme Court's decision in K.S. Joseph v. Philips Carbon Black Ltd., which clarified the requirements for examination of the complainant under the N.I. Act. Conclusion: Ultimately, the petition under Section 482 of the Cr.P.C. was dismissed, with the court finding no merit in the petitioner's contentions regarding jurisdiction and procedural requirements. The judgment emphasized the importance of good faith actions by the trial court and the application of legal principles in determining the validity of proceedings under the N.I. Act and the Cr.P.C.
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