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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 ..... artners. The Applicant and the Respondent No.1 had business dealings since 2013, over the years. Respondent No.1 through Respondent Nos. 2 to 4, received the goods sold by the Applicants' firm and acknowledged receipt of the same. As on 17th October, 2018, a sum of Rs. 26,68,206/- was due to the Applicants by the Respondent No.1 towards goods sold and delivered to them. Subsequently in discharge of said dues, Respondent No.1 issued a cheque dated 25th September, 2018, in a sum of Rs. 25,47,982/- in favour of the Applicant. The cheque was returned unpaid. After which, notices were exchanged, followed by complaint bearing S.C.C. No.10767/2018, filed in the Court of Magistrate at Thane under Section 138 read with 141 of the Negotiable Instruments Act, 1881 (Act for short). Pursuant to complaint and upon verification, statement of the Applicant being recorded on 22nd November, 2018, learned Magistrate issued process on 16th January, 2019. This order reads as under; ORDER BELOW EXH. IN S.C.C. NO.10767/2018 1) I have personally verified the complainant through Aadhar Card. On perusal of the complaint, documents filed along with it and after taking into consideration the statement of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Accumaltor Industries, Sangamner Vs. Sethi Brothers, Aurangabad, the learned Judge of this Court was of the view that complaint filed by unregistered firm under Section 138 of the Act, was not tenable in law in view of the bar under Section 69(2) of the Indian Partnership Act, 1932; whereas a diagonally opposite view was taken in the case of Narendra Amarnathji Kalda (supra). On reference the Division Bench after taking into consideration the judgment in the case of A.V. Ramanaiah M. Shekhara ALD (Cri) 2009 2 80, concluded that prosecution of an accused under Section 138 of the Act is not hit by the bar created by Subsection 2 of Section 69 of the Indian Partnership Act. This judgment in Narendra Amarnathji Kalda (supra) of the Division Bench, as it appears, was not brought to the notice of the learned Additional Judge, Thane. May be for this reason, he held otherwise, that the prosecution under Section 138 of the Act was not maintainable at the instance of unregistered partnership firm. 9. The second ground on which the learned Sessions Judge set aside the order issue process was that the learned Magistrate did not examine the Complainant upon oath, but simply relied on the ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground for proceeding.' In relation to this question, it would be advantageous to refer to Section 202 of the Code, which provides for postponing of issue of process. The same reads as follows ; "202. Postponement of issue of process : (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit[and shall, in case where the accused is residing at a place beyond the area in which he exercises his jurisdiction,] postpone the issue of process against the accused, and either inquire into the case himself or direct an 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 is sufficient 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 Session; 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-sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings under Section 138 of the N.I. Act and the Prosecution under the IPC. In the case of Dr. Rajul Raj (supra), the learned Judge after considering the scope of Section 138 and other amended provision of the Act, has held that the amended provisions could not achieve the desired result, which necessitated the Parliament to make changes in existing provisions and further introduced Sections 143 to 147 by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002. Thus, held that the very object of the Act will stand defeated if the inquiry under Subsection 1 of Section 202 of the Code is held to be mandatory in the complaint under Section 138 of the Negotiable Instruments Act. The judgment in the case of Dr. Rajul Ketan Raj (supra) was followed in the case of Girish Dharmchand Chordiya (supra). 12. The next authority relied on by learned Counsel for the Applicant is the order of the Hon'ble Apex Court in Suo Motu Writ Petition (Cri) No. 2 / 2020 decided on 16th April, 2021. Concerned with the large number of cases filed under Section 138 of the Negotiable Instruments Act, 1881 pending at various levels, a Division Bench of the Hon'ble Apex Court decided t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness on oath in an inquiry conducted under Section 202(1) for the purpose of issuance of process. Section 145 of the Act provides that the evidence of the complainant may be given by him on affidavit, which shall be read in evidence in any inquiry, trial or other proceeding, notwithstanding anything contained in the Code. Section 145(2) of the Act enables the court to summon and examine any person giving evidence on affidavit as to the facts contained therein, on an application of the prosecution or the accused. It is contended by the learned Amici Curiae that though there is no specific provision permitting the examination of witnesses on affidavit, Section 145 permits the complainant to be examined by way of an affidavit for the purpose of inquiry under Section 202. He suggested that Section 202 (2) should be read along with Section 145 and in respect of complaints under Section 138, the examination of witnesses also should be permitted on affidavit. Only in exceptional cases, the Magistrate may examine the witnesses personally. Section 145 of the Act is an exception to Section 202 in respect of examination of the complainant by way of an affidavit. There is no specific provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) of the Code. The complaint in question, was filed alongwith requisite documents namely invoices; delivery challans; transporters' receipts; copy of cheque dated 25th September, 2018; copy of statutory notice dated 17th October, 2018; copy of reply dated 31st October, 2018; copy of rejoinder reply dated 16th November, 2018. Therefore, though the accused Nos. 1, 2 and 3 were residing at a place beyond the territorial jurisdiction of the learned Magistrate, and although he did not postpone the issuance of process, order issue process shows that learned Magistrate has obtained 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 and for the aforestated reasons, impugned order in Criminal Revision Application No. 79/2019 is quashed and set aside. 17. In the course of arguments, Mr. Karl Rustomkhan, learned Counsel for the Applicant submitted on instructions, that the Complainant does not want to proceed against Ms. Sunita Burkule - Accused No. 4 in the subject complaint, pending on the file of Judicial Magistrate First Class, Thane. The statement is accepted. In co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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