2022 (7) TMI 1170 - HC - Indian Laws

Dishonor of Cheque - non-application of mind by magistrate before taking cognizance - Section 138 of the Negotiable Instruments Act, 1881 - HELD THAT - From the entire recital of petition of complaint and also from statement recorded by Magistrate during initial deposition, not even a single word has been used anywhere which can constitute offence under section 138 of N.I. Act. In the catena of judgments it has been reiterated that taking cognizance of an offence is not a mere formality. At the time of taking cognizance of the offence, the court is required to consider the averments made in the complaint. Taking of cognizance is thus a sine quo non or condition precedent for holding a valid trial. This is evident from the fact that chapter XIV (sections 190-199) of the code deals with under the heading conditions requisite for initiation of proceeding , then comes Chapter XVI (Section 204-210) under the heading commencement of proceeding before Magistrate - if initiation of proceeding has been made by Magistrate under section 138 of N.I. Act under Chapter XIV of the code, Magistrate cannot issue process quoting section 323/498A/500/34 I.P.C. by dint of section 204 under aforesaid chapter XVI of the code, because it can be highly prejudicial for the accused, who has right to know the cause of summoning. It is well-settled that when a Magistrate receives a complaint, he is not bound to take cognizance unless the fact alleged in the complaint discloses the commission of offence. This is clear from the use of the words 'may take cognizance' in section 190 of the code. The word 'may' gives a discretion to the Magistrate in the matter - when on receiving a complaint, the Magistrate applies his mind for the purpose of proceeding under Section 200 and the succeeding sections in Chapter XV of the Code, he said to have taken cognizance of the offence within the meaning of Section 190(1) (a) of Code of Criminal Procedure. In the present case, Magistrate received a complaint which discloses an allegation that the petitioner herein has defamed her inter alia by describing her as ex-wife in open place and also by threatening her and if the Magistrate on receiving such complaint would have spent few seconds in order to go through the same and further had he spent his time to apply his judicial mind, then by no stretch of imagination, he could have observed that the case filed under section 138 of N.I. Act - Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in the complaint. Having considered the aforesaid facts and circumstances of the case and also considering the fact that this Court under section 482 Cr.P.C. not competent to pass a direction upon the Magistrate to take cognizance upon a complaint on a particular section from a particular statute, the remedy of the opposite party no. 1, who failed to question the order No. 1 passed by the Magistrate for not taking cognizance of the offence in respect of which she lodged the complaint against the petitioner, is to file a fresh complaint against the petitioner on the basis of selfsame allegation, if so advised. Application disposed off.

Summary

Issues:
Quashing of criminal proceeding under Section 498A/323/500/34 of the Indian Penal Code based on improper initiation and non-application of mind by the Magistrate.

Analysis:
1. The petitioner sought to quash the proceeding in Complaint case no. C 9760 of 2011 under Section 498A/323/500/34 of the Indian Penal Code, citing improper summoning of the accused. The petitioner argued that summoning in a criminal case requires careful consideration by the Magistrate, ensuring application of mind to the facts and applicable laws. The complaint was initially related to the Negotiable Instruments Act, but the Magistrate proceeded under different sections of the IPC, leading to confusion and prejudice against the accused.

2. The petitioner contended that the issuance of process under sections different from those prayed for in the complaint was irregular and prejudicial. Referring to legal precedents, the petitioner highlighted the prohibition against multiple proceedings on the same cause of action. The State representative acknowledged the lack of proper application of mind by the Magistrate in the initial proceedings.

3. The complaint alleged offenses under Sections 500/504 IPC, detailing incidents of marital discord and defamation. However, the Magistrate's orders reflected confusion regarding the nature of the complaint and the applicable sections of law. The Magistrate's actions in taking cognizance without proper examination of the complaint's contents raised concerns about the legality of the proceedings.

4. The judgment emphasized that taking cognizance of an offense is a crucial step requiring the Magistrate to apply judicial mind to the complaint's allegations. The Magistrate's failure to discern the correct offense mentioned in the complaint and the subsequent issuance of process under different sections of the IPC indicated a lack of proper consideration and application of mind.

5. The judgment highlighted the violation of procedural rules by the Magistrate, particularly Rule 183 of the Calcutta High Court Criminal Rules and Order. The Magistrate's mechanical filling of a printed order without exercising judicial discretion demonstrated a clear lapse in following prescribed procedures, further undermining the validity of the proceedings.

6. Ultimately, the Court allowed the revision application, quashing the proceedings in Complaint case no. C 9760 of 2011. The judgment clarified that the complainant could file a fresh complaint based on the same cause of action, emphasizing the importance of proper initiation and application of mind by the Magistrate in criminal proceedings. No costs were awarded, and the parties were instructed to comply with formalities for obtaining certified copies of the order.