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TMI Blog2016 (2) TMI 1140X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 200 Cr.PC and can rely on affidavit filed along with the complaint. The Magistrate can take cognizance and issue summons if upon scrutinizing the complaint, the affidavit and the documents he is satisfied that prima facie offence has been made out against the accused. Section 143 of the Act empowers the Court to try cases under the Act summarily and thus, reinforces that every trial shall be conducted as expeditiously as possible. Sub-section (3) of Section 143 mandates that the trial would proceed, as far as practicable, on a day-to-day basis and sub-section (4) of the section requires the Magistrate to make the endeavour to conclude the trial within six months from the date of filing of the complaint. Section 144 makes the process of service of summons simpler and cuts down the long time ordinarily consumed in service of summons. whereas Section Section 146 contemplates that bank slip or memo having official mark denoting that the cheque has been dishonoured, shall constitute prima-facie evidence of dishonour of the cheque, unless and until, such fact is disapproved. The legislature has inserted these provisions and has provided a special procedure with an object of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cheque amount, the complainant company filed the afore stated complaints for offence under Section 138 of the Negotiable Instruments Act. 5. The learned Magistrate by orders dated 11.7.13 and 13.11.2013 issued process against the applicant and the other two accused for offence under Section 138 of the Negotiable Instruments Act. The applicant herein had challenged the said orders before the Court of Sessions, Greater Mumbai. The revision applications came to be dismissed by the impugned orders dated 24.4.2015. Being aggrieved by the said orders, the applicant has invoked the jurisdiction of this court under Section 482 of Cr.P.C. for quashing the said orders dated 24.4.2015 as well as the orders of issuance of process. 6. Mr.Ramsinghani, the learned Counsel for the applicant has submitted that the subject cheques were drawn on the account maintained by the accused no.3 Jeevandeep Hospital, a proprietorship concern and not on the account maintained by the applicant accused no.1. The learned Counsel for the applicant has further submitted that the applicant is neither a proprietress of the accused no.3 Jeevandeep Hospital nor the drawer of the subject cheques, but she had sig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are parties to these proceedings. The orders of issuance of process are challenged by the applicant herein on the ground that she was not the drawer of the cheque. Hence, the only question which falls for determination is whether the applicant herein is liable to be prosecuted under Section 138 of the N.I.Act. 11. At this stage it is advantageous to refer to the decision of the Apex Court in Aparna Seth vs. Sheth Developers [2013(4) Bom CR 829] wherein the Apex Court has held that under Section 138 of the N.I.Act, it is only the drawer of the cheque who can be prosecuted. The Apex Court has further held that under Section 138 of the Negotiable Instruments Act, in case of issuance of cheque of joint accounts, the joint account holder cannot be prosecuted unless the cheque has been signed by each and every person who is a joint account holder. The Apex Court has further held that the culpability attached to dishonour of a cheque can, in any case except in case of Section 141 of the N.I.Act be extended to those on whose behalf the cheque is issued. The Apex Court has reiterated that it is only the drawer of the cheque who can be made an accused in any proceeding under Section 138 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... promissory note and had thereby agreed to repay the said loan and had accordingly issued the subject cheques towards repayment of the said loan. Under these circumstances, the mere fact that the applicant had issued the cheques on the account of Jeevandeep Hospital, which is not a legal entity and only a business concern of the applicant, would not prima facie indicate that the applicant is not a drawer of the cheque. The records prima facie indicate that the applicant had issued the said cheques towards discharge of her personal liability. Hence, the principles laid down in Bimal Singh are not applicable to the facts of the present case. 16. The uncontroverted assertions made in the complaint as well as the documents produced in support thereof prima facie disclose the essential ingredients of the offence under Section 138 of the N.I.Act qua the applicant. Suffice it to say that the court in exercise of its jurisdiction under Section 482 of Cr.P.C. cannot go into the truth or otherwise of the allegations made in the complaint or delve into the disputed question of facts. The issues raised by the applicant by way of defence can be canvassed before the trial court and the same wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent ground for proceeding: Provided that no such direction for investigation shall be made, - (a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions or (b) Where the complaint has not been made by a court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Court on an offer in charge of a police station except the power to arrest without warrant. 19. ThE object of Section 200 is to test whether the complaint makes out sufficient ground for the purpose of issuing process. The amended subsection (1) of Section 202 Cr.P.C makes it obligatory upon the Magistrate that bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 202 of Cr.P.C. if made applicable to the complaints filed under Section 138 of N.I.Act would defeat the very purpose behind the enactment of Section 138 of the N.I. Act. Thus, upon considering and analyzing the object and ambit of Section 138 of the N.I.Act vis- -vis the object of sub-section (1) of Section 202 of Cr.P.C. the learned Judge of this Court has observed as follows : I am of the view that the said provision may not apply to the provisions of Negotiable Instruments Act and merely because the accused reside outside the jurisdiction of the court, in each and every case it is not necessary for the Magistrate topostpone the issuance of process. The Magistrate, in my view, can exercise his discretion and decide whether to issue process, dismiss the complaint after recording the verification of the complainant and his witnesses, if any, or postpone the issuance of process and in a given case hold a further inquiry, depending on facts and circumstances of each case and non-compliance of the said provision would not vitiate the issuance of process if there is material to indicate that there has been an application of mind on the part of the Magistrate after going through the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h only object, to ascertain the truth in the allegations made and only prima facie case is required to be made out. The scope of the enquiry under Section 202 of Cr.P.C. is very limited. It is also required to keep in mind the relevant provisions of N.I.Act like Section 118 and 139 raise some presumptions. The witnesses like bank officers are not required to be examined to prove bank documents. Similarly, in respect of other evidence, the postal endorsement on the notice, there are presumptions under Section 27 of General Clauses act and those presumptions can be kept in mind by the JMFC. Thus the scope of enquiry, which may be made by the Magistrate is very limited. In such a case to send the matter to police even for limited purpose of investigation is not desirable. With these observations, the process was set aside and the matter was remanded with directions to follow the procedure laid down by Section 202 of Cr.P.C. 27. It is pertinent to note that the decisions of the Apex Court in Vijay Dhanuka vs. Najima Mamitaj, K.T.Joseph vs. State of Kerala, and Bank of Oman vs. Bakara Abdul Aziz and the decision of this court in Chandrakant Pawar vs. State of Maharashtra (Supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riminal justice system. Further to address the difficulties faced by the payee or the lender of the money in filing the case under Section 138 of the said Act, by the Negotiable Instruments (Amendment) Act, 2015 Section 142 has been amended and Section 142A has been inserted to define the territorial jurisdiction for offence under Section 138 of the Act. 30. It is thus clear that the Act has been amended from time to time to ensure smooth functioning of business transactions and to restore the sanctity and credibility of issuance of cheques in commercial transaction by speedy trial and expedient disposal of cases under Section 138 of the N.I.Act. The object of the Act cannot be ignored while deciding whether the rigors of the amended provisions of Section 202 Cr.P.C. are applicable to the offence under Section 138 of the Negotiable Act, which reads as under: Section 138. Dishonour of cheque for insufficieny etc., o fund in the account-. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; (v) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice; 32. Section 142 deals with cognizance of offences. The said provision reads as under: Section 142.- Cognizance of offences- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- (a) no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138. [provided that the cognizance of the complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond the following day to be necessary for reasons to be recorded in writing. (3) Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint. Section 145.-Evidence on Affidavit:- (1) Not withstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceedings under the said Code. (2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein. Section 146. Bank s slip prima facie evidence of certain facts:- The Court shall, in respect of every proceedings under this Chapter, on production of bank s slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved. 33. Upon analyzing the relevant provisions of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 200 mandates examination on oath of the complainant and the witnesses present, if any, and section 202 mandates an enquiry or investigation by the police or by any other person. However, Section 145 with its non-obstante clause dispenses the need for examination of the complainant and the witnesses on oath and enables the magistrate to issue process on the basis of the affidavit filed in support of the complaint under section 138 N.I.Act,. Section 145 of the Act therefore is an exception to the general rule as envisaged in Section 200 202 of the Code. 37. In Indian Bank Association and Ors. Vs. Union of India Ors. [(2014) 5 SCC 590], the Apex Court inter alia held that that under Section 145 of the Act, the complainant can give his evidence by way of affidavit and such affidavit shall be read in evidence in an enquiry, trial or other proceedings in the court, which makes it clear that the complainant is not required to examine himself onwards i.e. once after filing the complaint and once after summoning of the accused. The affidavit and documents filed by the complainant along with complaint for taking cognizance of the offence are good enough to be read in evidence a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er section 138 NI Act, the Magistrate is not obliged to examine the complainant under section 200 Cr.PC and can rely on affidavit filed along with the complaint. The Magistrate can take cognizance and issue summons if upon scrutinizing the complaint, the affidavit and the documents he is satisfied that prima facie offence has been made out against the accused. 40. It is also pertinent to note that the Negotiable Instruments (Amendment) Act, 2015 defines and restricts the territorial jurisdiction to a court specified in Section 142 (2) (a) and (b) of the Act. The said issue of territorial jurisdiction which has to be decided on the basis of the documents, eliminates the need for further inquiry on jurisdictional issue. It therefore follows that the Magistrate can arrive at the requisite satisfaction about the essential ingredients of the offence including the issue of territorial jurisdiction at the end of the enquiry under Section 200 Cr.P.C itself and this obviates the need of holding further enquiry under Section 202 Cr.P.C. This being the position further enquiry under sub section (1) of Section 202 of the Code, if held to be mandatory in complaints filed under Section 138 N. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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