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TMI Blog2023 (8) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 N.I. Act. The strict compliance of the provision under Section 202 Cr.P.C. in such cases has been dispensed with by the Hon ble Supreme Court. By the order under revision the learned Magistrate has issued a warrant of arrest against the petitioner. Payment of the due amount has been made. Keeping with the view of the Hon ble Supreme Court in re-expeditious trial of the cases under Section 138 N.I. Act the present revision is disposed of by directing the learned Magistrate to refer this case for mediation to the Secretary of the respective District Legal Services Authority - in the interest of justice and as payment of the cheque amount has already been made by the petitioner, the order under revision issuing warrant of arrest against the petitioner is liable to be set aside. Revision application allowed. - The Hon ble Justice Shampa Dutt ( Paul ) For the Petitioner : Mr. Pawan Kumar Gupta, Ms. Sofia Nesar, Mr. Santanu Sett. For the Opposite Party : None ORDER Shampa Dutt ( Paul ) , J. 1. The present revision has been preferred praying for quashing of the order dated 14.11.2018 and the entire proceeding of complaint case being C/13277/2009 ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing cheque no. 272827 dated 30th November, 2008 drawn on ICICI Bank Ltd., Bhubaneshwar Branch, Unit No. III, Opposite Sriya Talkies, Off. Janpath, Bhubaneshwar 751 001. The husband of the petitioner namely Kailash Agarwalla is actually the signatory of the cheque. Therefore, the entire cause of action does not have any locus standi as it cannot arise against the petitioner herein because the petitioner was not signatory to the cheque which was allegedly dishonoured. 9. On 14.11.2018 when the petitioner was not represented by the learned lawyer, the learned Trial Court by virtue of impugned order issued warrant against the petitioner and fixed 30.03.2019 for execution report. 10. It is submitted that until and unless the warrant is recalled and impugned order is set aside the petitioner shall be suffer irreparable loss and injury. 11. Mr. Pawan Kumar Gupta, learned counsel for the petitioner has submitted that the petitioner received the demand notice issued by the opposite party but before receiving the summons, the petitioner herein, in good faith and bona fide interest, deposited two demand drafts, being DD No. 300971 dated 26th March, 2009 amounting to Rs.26,555/- an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has made part-payments after the debt was incurred and before the cheque was encashed upon maturity. The sum of rupees twenty lakhs represented on the cheque was not the legally enforceable debt‟ on the date of maturity. Thus, the first respondent cannot be deemed to have committed an offence under Section 138 of the Act when the cheque was dishonoured for insufficient funds; and (v) The notice demanding the payment of the said amount of money‟ has been interpreted by judgments of this Court to mean the cheque amount. The conditions stipulated in the provisos to Section 138 need to be fulfilled in addition to the ingredients in the substantive part of Section 138. Since in this case, the first respondent has not committed an offence under Section 138, the validity of the form of the notice need not be decided. 19. In this case, it is clear that the payment was not made within the statutory period. So the proceedings under Section 138 N.I. Act is prima facie maintainable. 20. The next contention of the petitioner is that the mandatory provision of Section 202 Cr.P.C. has not been complied with by the learned Magistrate. 21. Section 200 Cr.P.C. lays down ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat investigation all the powers conferred by this Code on an officer- in- charge of a police station except the power to arrest without warrant. 23. The proceedings in this case is under Section 138 of the Negotiable Instruments Act. 24. A Five Judge Bench of the Supreme Court in expeditious trial of cases (for proceedings u/s 138 N.I. Act), on April 16, 2021 has held in respect of compliance of the provision under Section 202 Cr.P.C. in such cases as follows:- 12. Another point that has been brought to our notice relates to the interpretation of Section 202 (2) which stipulates that the Magistrate shall take evidence of the witness 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 lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 138 in respect of the examination of witnesses on oath. The Court held that the evidence of witnesses on behalf of the complainant shall be permitted on affidavit. If the Magistrate holds an inquiry himself, it is not compulsory that he should examine witnesses and in suitable cases the Magistrate can examine documents to be satisfied that there are sufficient grounds for proceeding under Section 202. 26. In the present case as seen from the order dated 18.03.2009 the Magistrate took evidence on affidavit along with documents under Section 200 Cr.P.C. and considered the case to be suitable for issuing process under Section 202 Cr.P.C. on examination of the documents and the evidence of the complainant on affidavit and being satisfied as to the sufficiency of grounds for proceeding under Section 202 Cr.P.C. 27. Thus the order issuing process on 18.03.2009 passed by the learned Metropolitan Magistrate, 9th Court, Calcutta being in accordance with law (Re expeditious trial of cases u/s 138 of the N.I. Act (Supra) and Sunil Todi vs The State of Gujarat (Supra)), needs no interference. 28. The proceeding is under Section 138 N.I. Act. The strict compliance of the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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