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TMI Blog2021 (10) TMI 293X X X X Extracts X X X X X X X X Extracts X X X X ..... ed requisite satisfaction, from the documents available on record as to sufficiency of the grounds for proceeding under Section 202 against the accused. In view of this matter the impugned order in Criminal Revision Application No. 79/2019 is quashed and set aside. The issue process order passed by the learned Magistrate on 16th January, 2019 is upheld - Impugned order is quashed and set aside - Application allowed. - Criminal Application (APL) No. 1768 / 2019 - - - Dated:- 6-10-2021 - SANDEEP K. SHINDE J. Mr. Karl Rustomkhan, Advocate for the Applicant. Mr. Sachin Gite, Advocate for Respondent No.2. Ms. Ketki Gadkari, Advocate for Respondent No.3. Mr. S.S. Hulke, APP for State/ Respondent No.5. Judgment : - 1. Rule. 2. Rule made returnable forthwith. Heard, finally with the consent of the parties. 3. This application under Section 482 of the Code of Criminal Procedure, 1973 (Code for short) challenges the order dated 23rd October, 2019 in Criminal Revision Application No.79/2019 passed by the Court of Sessions Judge, Thane. 4. Facts essential for decision of this application, are as follows; Applicant is a partnership firm engaged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce beyond the area in which he exercises his jurisdiction and therefore ought to have postponed the issue of process and further, either inquired into the case himself or direct the investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not, there was sufficient ground for proceeding. (iii) The issue process order was passed without examining the complaint upon oath, by simply relying on the verification below the complaint. (iv) When the statutory notice issued by the complainant-firm, was replied it was informed to the Complainant that accused no. 4 Ms. Sunita Mukund Burkule was no way concerned with the partnership firm, nor was responsible for day to day transaction of the partnership firm. In spite of this fact, Ms. Sunita Burkule was arraigned as an accused and order issue process was passed mechanically by the learned Magistrate. 7. Heard. Mr. Karl Rustomkhan for the Applicant; Mr. Gite for Respondent No.2; Ms. Gadkari for Respondent No.3 and Mr. Hulke, learned APP for State. 8. Unregistered Partnership maintainability of complaint under Section 138 of the N.I. Act: Whether prosec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . has held that: After addition of Section 145 of N.I. Act in the statute book, it is open to the Magistrate to issue process on the basis of the contents of the complaint, the documents in support thereof and the affidavit submitted by the complainant in support of the complaint. Once the complainant files an affidavit in support of the complaint before issuance of the process under Section 200, Cr.P.C., it is thereafter open to the Magistrate, if he thinks it fit, to call upon the complainant to remain present and to examine him as to the facts contained in the affidavit submitted by the complainant in support of his complaint. But then it is a matter of discretion and the Magistrate is not bound to call upon the complainant to remain present before the Court and to examine him upon oath for taking decision whether or not to issue process on the complaint under Section 138 of N.I. Act. Herein, Complainant was examined on oath; learned Magistrate perused the documents; heard Advocate for the Complainant and issued process. Thus, the finding of the Revisional Court that order issue process was passed simply relying on verification was factually incorrect, and thus set a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to order issue process (reproduced hereinabove) to contend that, learned Magistrate has issued process after verifying the complaint; documents, produced with it, and after hearing the advocate for the Complainant. He therefore, submitted, after application of mind, process was issued and it was not issued mechanically. In support of the contention, he relied on the judgments of this Court in the case of (i) Bansilal S. Kabra Vs. Global Trade Finance Ltd. (2010 ALL MR (Cri) 3168); (ii) Dr. Rajul Ketan Raj Vs. Reliance Capital Ltd. 2016(5) Mh.L.J.58; (iii) Girish Dharmchand Chordiya vs. Neeta Sachin Chandak (Criminal Writ Petition No. 997/2017). He submitted that the object of the Act will stand defeated if an inquiry under Subsection 1 of Section 202 of the Code is held to be mandatory in the complaint under Section 138 of the Act. Mr. Rustomkhan would largely rely on the judgment in the case of Dr.Rajul Ketan Raj (supra), which in turn relied on in the case of Bansilal S. Kabra (supra), wherein similar view was taken with regard to provision Subsection 202 of the Code. Besides, Mr. Rustomkhan has taken me through the judgment of the Hon ble Apex Court in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ases under Section 138 have been decided by the High Courts upholding the view that it is mandatory for the Magistrate to conduct an inquiry, as provided in Section 202 of the Code, before issuance of process in complaints filed under Section 138. Contrary views have been expressed in some other cases. It has been held that merely because the accused is residing outside the jurisdiction of the Court, it is not necessary for the Magistrate to postpone the issuance of process in each and every case. Further, it has also been held that not conducting inquiry under Section 202 of the Code would not vitiate the issuance of process, if requisite satisfaction can be obtained from materials available on record. 13. In Paragraph No. 11 of the order, the Hon ble Apex Court has held thus; in view of the judgments of this Court in Vijay Dhanuka (supra), Abhijit Pawar Vs. Hemant Madhukar Nimbalkar (2017) 3 SCC 528 and Birla Corporation Limited (supra), the inquiry to be held by the Magistrate before issuance of summons to the accused residing outside the jurisdiction of the Court cannot be dispensed with. However their Lordships were in agreement with the recommendation of lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases, the Magistrate can examine documents for proceedings under Section 202. The dictum is when Magistrate holds inquiry himself, it is not compulsory that he should examine the witnesses and in suitable cases the Magistrate can examine documents for satisfaction as to the sufficiency of grounds for proceedings under Section 202. (emphasis supplied) 15. In the case in hand, the learned Magistrate while issuing the process, has personally verified the complaint; perused the documents filed alongwith it and after taking into consideration the statement of Complainant on oath and upon hearing, learned Advocate for the Complainant at length held that there were sufficient grounds for proceeding against the accused. I have reproduced the order issue of process herein above. It shows that the learned Magistrate has not only verified the complaint and heard the Complainants Advocates, but also perused the documents filed alongwith the complaint for obtaining satisfaction as to sufficiency of ground for proceeding under Section 202. 16. Thus, in consideration of the law laid down by this Court making a distinction between the complaint under Section 138 of the Act and co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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