9911796707
TMI Blog2020 (9) TMI 255X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Cr. M.P. No. 1730 of 2019 - - - D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasoning recorded by the trial Magistrate and dismissed the revision vide impugned order dated 03/05/2019 which is under challenge in the present petition under Section 482 of the Cr.P.C. 2. Mr. Ankur Agrawal, learned counsel for the 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 in view of the provision contained under Section 142(1)(a) of the N.I. Act and it is a matter which is not covered by Section 460(e) of the Cr.P.C. He further submits that cognizance of offence taken against the petitioner is also hit by v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of provision contained under Section 460(e) of the Cr.P.C. 6. At this stage, it would be appropriate to notice Section 460(e) of the Cr.P.C. which states as under:- 460. Irregularities which do not vitiate proceedings. - If any Magistrate not empowered by law to do any of the following things, namely:- (a) XXXX (b) XXXX (c) XXXX (d) XXXX (e) to take cognizance of an offence under clause (a) or clause (b) of sub-section (1) of section 190; (f) XXXX (g) XXXX (h) XXXX (i) XXXX erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered. 7. The provision contained in Section 460(e) of the Cr.P.C. saves pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of the Code. Chapter XLV deals generally with irregular proceedings. There are certain irregularities which do not vitiate the proceedings. They are set out in section 529. No question of prejudice arises in this class of case because the section states categorically that they shall not vitiate the proceedings. Certain other irregularities are treated as vital and there the proceedings are void irrespective of prejudice. These are set out in section 530. A third class is dealt with in sections 531, 532, 533, 536(2) and 537. There, broadly speaking, the question is whether the error has caused prejudice to the accused or, as some of the sections put it, has occasioned a failure of justice. The example we have given are illustrativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... di, 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. 11. 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. 12. The Supreme Court in the matter of K.S. Joseph v. Philips Carbon Black Ltd. and Anr. AI ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
