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2019 (3) TMI 544 - HC - Indian LawsDishonor of Cheque - Proceedings under the Negotiable Instruments Act, 1881 - Interpretation of statute - Postponement of issue of process - Section 202 of the Code of Criminal Procedure - Whether the provisions in the said section is mandatory? - Held that - As per the said section by way of amendment of 2005 it came to be provided that if the accused persons are residing at the place beyond the area in which the Magistrate exercises the jurisdiction, the Magistrate needs to postpone the issue process against the accused and follow the procedure given in section 202 of the Cr.P.C. In a matter like the present one, the Magistrate is expected to make inquiry into the case himself as per this provision. The object behind introducing the amendment shows that when in the past there was discretion with the Magistrate either to make inquiry as mentioned in section 202 to ascertain that there are sufficient grounds for proceeding against the accused, by amendment, the aforesaid portion came to be added in the provision and that procedure needs to be followed when the accused persons are not the residents of the area in which the Magistrate is expected to exercise the jurisdiction - Apparently the amended provision has added something in section 202 and that is the procedure which needs to be followed in such cases before issue process order and that necessarily involves consumption of some time. After consideration of the material which is made available under section 200 if the Magistrate thinks it fit to go for further inquiry as provided under section 202 of the Cr.P.C. it was open to the Magistrate in the past also, to postpone issue of process even after giving of the material by the complainant for the purpose of section 200 of Cr.P.C. and ask the complainant to give material for inquiry as provided in section 202 of the Cr.P.C. For this stage also the complainant can file affidavits as provided in section 145 but the Magistrate has a power to ask the complainant and the witnesses to remain present before him and make query by asking questions with regard to the material produced during this inquiry. This power is necessarily there with the Magistrate in view of the scheme of that Chapter. It cannot be said that the Magistrate must act on the basis of the evidence on affidavit and other material produced by the complainant which can be done under sections 145 and 146 of the Negotiable Instruments Act. Petition allowed.
Issues Involved:
1. Challenge to the orders of issue process under Section 138 of the Negotiable Instruments Act, 1881. 2. Non-compliance with Section 202 of the Code of Criminal Procedure (Cr.P.C.) by the Judicial Magistrate before issuing process. 3. The mandatory nature of the amended provision of Section 202 Cr.P.C. 4. The relevance of Section 145 and 146 of the Negotiable Instruments Act in the inquiry process under Section 202 Cr.P.C. 5. The jurisdiction of the High Court under Section 482 Cr.P.C. in the absence of a revision petition. Detailed Analysis: 1. Challenge to the Orders of Issue Process under Section 138 of the Negotiable Instruments Act, 1881: The petitioners challenged the orders of issue process made by the Judicial Magistrate, First Class, in private complaints filed for an offense punishable under Section 138 of the Negotiable Instruments Act, 1881. The decisions given by the Additional Sessions Judge in Criminal Revision Application Nos. 86/2017 and 87/2017, which dismissed the revisions, were also challenged. 2. Non-compliance with Section 202 of the Code of Criminal Procedure (Cr.P.C.) by the Judicial Magistrate before Issuing Process: One of the grounds for challenging the orders was the non-compliance with Section 202 Cr.P.C. before issuing the process. The accused persons were residents of Mumbai, which necessitated the Magistrate to postpone the issue of process and conduct an inquiry or direct an investigation as per Section 202 Cr.P.C. The court emphasized the mandatory nature of this provision to prevent harassment of innocent persons residing far from the jurisdiction of the Magistrate. 3. The Mandatory Nature of the Amended Provision of Section 202 Cr.P.C.: The court analyzed the legislative intent behind the amendment of Section 202 Cr.P.C. in 2005, which made it obligatory for the Magistrate to conduct an inquiry or direct an investigation when the accused resides outside the jurisdiction. The court referred to various judgments, including those of the Supreme Court, to conclude that the amended provision is mandatory. The court noted that the purpose of this amendment was to prevent false complaints and harassment of accused persons residing far from the jurisdiction. 4. The Relevance of Section 145 and 146 of the Negotiable Instruments Act in the Inquiry Process under Section 202 Cr.P.C.: The court discussed the interplay between Sections 145 and 146 of the Negotiable Instruments Act and Section 202 Cr.P.C. The Full Bench decision in Rajesh Chalke v. State of Maharashtra was considered, which held that affidavits could be used as evidence under Section 145 even during the inquiry under Section 202 Cr.P.C. However, the court emphasized that the Magistrate has the discretion to conduct a further inquiry to ascertain whether a prima facie case is made out for issuing the process, beyond just the affidavits and evidence submitted under Section 145. 5. The Jurisdiction of the High Court under Section 482 Cr.P.C. in the Absence of a Revision Petition: One of the matters was filed directly in the High Court without a revision petition. The court referred to the Supreme Court judgment in Dhariwal Tobacco Products Ltd. v. State of Maharashtra, which held that proceedings cannot be dismissed solely on the ground that an alternative remedy of filing a revision under Section 397 Cr.P.C. is available. The court exercised its jurisdiction under Section 482 Cr.P.C. to allow the petition. Conclusion: The High Court allowed all three writ petitions, quashing the orders of issue process passed by the Judicial Magistrate and the decisions of the Sessions Court in the revision applications. The court directed the Judicial Magistrate to follow the procedure laid down in Section 202 Cr.P.C. as amended in 2005 for considering the issue of process within two months from the date of the decision. The rule was made absolute in these terms.
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