2024 (9) TMI 917 - HC - Indian Laws

Dishonour of Cheque - mandatory enquiry in respect of accused person - Rejection of prayer of the petitioner for conducting an enquiry under Section 202 of the CrPC and fixing a date for cross-examination of P.W. 1. Whether the amendment of Section 202 of the Code of Criminal Procedure, 1973 as enacted vide Section 19 of the Criminal Procedure (Amendment) Act, 2005 is mandatory in nature while conducting an enquiry under Section 202 of the CrPC before issuing process under Section 204 of the CrPC to an accused, who resides beyond the territorial jurisdiction of the Court of the Trial Magistrate? - Whether Section 202 of the CrPC is applicable in a case of the Court complaint filed under Sections 138 read with Section 142 of the NI Act, 1881 even supported by an affidavit by the Public Servant? HELD THAT - It is admitted facts that the petitioner resides beyond the territorial jurisdiction of the Court concerned. There is no dispute with regard to the address. Accordingly, it would be necessary to assert whether the Learned Trial Magistrate should follow the provisions of sub-section (1) of Section 202 of the CrPC and for that this Court relied a judgment placed by the opposite parties passed in S. S. Binu v. State of West Bengal and another 2018 (5) TMI 2157 - CALCUTTA HIGH COURT where the Division Bench observed ' keeping in mind the object sought to be achieved by way of amendment of sub-section (1) of Section 202, Cr.P.C., the nature of enquiry as indicated in Section 19 of the Criminal Procedure (Amendment) Act, 2005, the Magistrate concerned is to ward of false complaints against such persons who reside at far of places with a view to save them for unnecessary harassment and the Learned Magistrate concerned is under obligation to find out if there is any matter which calls for investigation by Criminal Court in the light of the settled principles of law holding an enquiry by way of examining the witnesses produced by the complainant or direct an investigation made by a police officer. This Court finds that the Learned Chief Metropolitan Magistrate has carefully perused the complaint supported by an affidavit and documents, taken cognizance and further transferred the case to Learned Metropolitan Magistrate, 16th Court for enquiry and disposal under Section 192 (1) CrPC - And finally satisfied that there are sufficient grounds for proceeding against the accused person under Section 138 read with Section 142 of the N.I. Act, 1881 and issued summon to the accused person. Moreover, accused person appeared through his learned Advocates. On 12.09.2019, a plea under Section 251 of the Code of Criminal Procedure was taken and the matter was fixed for evidence. The complainant was examined on 04.12.2019 and 20.01.2021 and the matter was fixed for cross-examination. Thereafter, at the stage of cross-examination, the accused person filed petition after more than a year on 05.04.2022 for examination under Section 202 of the CrPC. Revision dismissed.

Summary

Issues Involved:
1. Mandatory nature of Section 202 CrPC amendment.
2. Applicability of Section 202 CrPC in cases filed under Sections 138 and 142 of the NI Act, 1881, supported by an affidavit by a public servant.

Detailed Analysis:

Issue 1: Mandatory Nature of Section 202 CrPC Amendment

The petitioner argued that the Magistrate must conduct an inquiry under Section 202 of the CrPC before issuing process if the accused resides beyond the court's jurisdiction. They cited the Supreme Court's decision in Suo Motu Writ Petition (Cri) No. 2 of 2020, which emphasized that such an inquiry is mandatory. The petitioner claimed that the Learned Magistrate erroneously issued the process without conducting the mandatory inquiry, thus violating Section 202 of the CrPC.

The court, however, relied on the judgment in S. S. Binu v. State of West Bengal (2018 CRI. L. J. 3769), which clarified that in cases under Section 138 read with Section 141 of the NI Act, the Magistrate is not mandatorily required to comply with Section 202 (1) before issuing summons to an accused residing outside the territorial jurisdiction. The court also referred to the Supreme Court's decision in Sunil Todi and Ors. v. State of Gujarat (AIR 2022 SC 47), which reiterated that if the evidence of the complainant may be given by affidavit, there is no reason for insisting on the evidence of witnesses to be taken on oath, making Section 202(2) CrPC inapplicable to complaints under Section 138.

Issue 2: Applicability of Section 202 CrPC in Cases Filed Under Sections 138 and 142 of the NI Act, 1881, Supported by an Affidavit by a Public Servant

The petitioner contended that the Learned Magistrate should have conducted an inquiry under Section 202 CrPC as the accused resided beyond the court's jurisdiction. They argued that the Learned Magistrate's failure to do so, despite the complainant being a public servant, was erroneous. The petitioner cited judgments like K.S. Joseph v. Philips Carbon Block Limited (2017) 1 SCC (Cri) 270 to support their claim that an inquiry under Section 202 CrPC is mandatory to avoid unnecessary harassment.

Conversely, the opposite parties argued that Sections 200 and 202 CrPC are not applicable when the complaint is filed by a public servant with an affidavit pursuant to Section 145 of the NI Act, 1881. They cited the judgment in Sunil Todi and Ors. v. State of Gujarat (AIR 2022 SC 47), which stated that the evidence of the complainant may be given by affidavit, and the Magistrate can examine documents to be satisfied that there are sufficient grounds for proceeding under Section 202.

The court found that the Learned Magistrate had carefully perused the complaint, supported by an affidavit and documents, and issued the process after being satisfied with the grounds for proceeding. The court noted that the complainant, being a public servant, was acting in discharge of official duties, and thus, the Magistrate's order was valid and correct. The court endorsed the concurrent findings of both the Learned Trial Court and Learned Sessions Judge, dismissing the petitioner's claims.

Conclusion:

The court dismissed the Criminal Revisional application, upholding the orders of the Learned Metropolitan Magistrate and the Learned Chief Judge, City Sessions Court. The court found that the Magistrate had validly issued the process after being satisfied with the grounds for proceeding and that the mandatory inquiry under Section 202 CrPC was not required in this case, given the complainant's status as a public servant and the affidavit provided. The judgment highlighted the applicability of Section 145 of the NI Act, 1881, which allows evidence by affidavit, thus streamlining the process under Section 138 cases.