9911796707
TMI Blog2010 (3) TMI 1280X X X X Extracts X X X X X X X X Extracts X X X X ..... by necessary papers and accordingly raised bill for the said amount being the value of 'made tea'. Accused No. 1 company towards payment of the said amount being their legally enforceable debt and subsisting liabilities issued one post dated cheque bearing No. 307974 dated 14-3-2007 for Rs. 3,94,000/- only drawn on UTI Bank, Kolkata under the signature of accused No. 3 to the knowledge of the other accused persons with clear promise and assurance that upon presentation of the said cheque, the same would definitely be honoured. The cheque was accordingly presented by the complainant company to its banker i.e. Centurion Bank of Punjab Limited, Kolkata for encashment. It was returned dishonoured with endorsement 'insufficient fund'. The complainant company thereafter contacted the accused persons who requested the complainant to bear with them as they were facing financial hardship. The complainant company was asked to present the cheque again in July, 2007. On the basis of such assurance and with the legitimate expectation, the cheque was presented by the complainant company to its banker i.e. Allahabad Bank, Jalpaiguri branch on 30th July, 2007. It too bounced vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2007, learned Court directed issuance of process against the accused persons and fixed a date for service return and appearance, Subsequently, one of the accused persons surrendered in Court and was let out on bail. The remaining accused persons being Nos. 1, 2 4 sought for time to enable them to present themselves. Application was also filed under Section 205 of the Code of Criminal Procedure seeking exemption from personal appearance. The said accused person Nos. 1, 2 and 4 were subsequently let out on bail. The learned Court fixed a date for hearing of the application under Section 205 of Code of Criminal Procedure At this stage, one of the accused persons, namely, Biswanath Maheswari, filed the instant application praying for quashing of the proceeding now pending before the learned Trial Court. 8. Mr. Bhattacharya, appearing as learned Counsel for the Petitioner, submitted that continuation of further proceeding of the case will be an abuse of the process of Court and as such, sought for quashing of the same The main point raised for the Petitioner and accused Nos. 2, 3 and 5 is that there is no averment in the petition of complaint as to the specific role of the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pears to the Magistrate that the office 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-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 Code on an officer in charge of a police station except the power to arrest without warrant. 13. Mr. Bhattacharya in support of his contention submitted that the relevant law has undergone sea change in view of the amendment of Section 202 of the Code of Criminal Procedure which took effect from 23rd June, 2006. It was contended that if the case involves an accused person residing outside the territorial jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... H). 18. In the case between D. Kannammal v. Tmt. Renuga Palanisamy, as reported in 2008 (2) E. Cr. N. 587, the learned single Bench of the Madras High Court, however, held that the amended provision contained under Section 202(1) of the Code of Criminal Procedure may not apply in respect of cases filed for an offence under Section 138 of the N.I. Act. The learned Court in the said case observed that learned Magistrate need not postpone the issue of process against the accused, even if the accused is residing at a place outside his jurisdiction, if allegations in the complaint and examination of the complainant prima facie appears sufficient to proceed and the facts constituting an offence under Section 138 of the N.I. Act are disclosed in the complaint. 19. In course of submission, reference was also made to the decision in the case between Muhammed Basheer v. The State of Kerala, as reported in 2009 (2) AICLR (Ker) 230 : 2009 Cri LJ 246(Ker) wherein it was held omission to conduct an enquiry under Section 202, Code of Criminal Procedure cannot be said to vitiate the cognizance taken and the issue of process under Section 204 of the Code of Criminal Procedure 20. Though r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. Procedure appears as an aid to substantive justice and the substantive justice so far as the Criminal Court is concerned is to decide whether an offence alleged has been committed by the accused persons. It was further held that over emphasis or over reliance upon the compliance of the procedural law may be counter productive and instead of advancing the cause of justice, the same may operate as an hindrance to the cause of substantial justice. 25. The Apex Court in the case between State of Gujarat v. Dilipbhai Nathjibhai Patel, as reported in 1998 SCC (Cri) 737 : AIR 1998 SC 1429 referred to an earlier decision in the case between Union of India v. Deoki Nandan Aggarwal 1992 Supp (1) SCC 323 : AIR 1992 SC 96 wherein it was held: It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the Courts. The Court cannot add words to a statute or read words into it which are not there. Assuming ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law, the environment necessitating enactment of the legislation, and the object sought to be achieved, are useful to deciphering the real intention of the Parliament and therefore cannot be denied to the Court. Therefore, reports of the committee which preceded the enactment of a legislation, reports of joint parliamentary committee, report of a commission set up for collecting information leading to the enactment are permissible external aids to construction. 30. It was, however, clearly and categorically observed that the construction which would advance the object of the Act is to be preferred. It is necessary to keep in mind that the meaning of the words and expressions used in a statute ordinarily take their colour from the context in which they appear. Construction which leads to absurdity must, however, be avoided. 31. Deriving inspiration from the decision of the Apex Court in the case between Arnit Das v. State of Bihar, as reported in 2001 SCC (Cri) 1393 : AIR 2001 SC 3575 it was submitted by Mr. Ganguly that Supreme Court does not decide matters which are only of academic interest on the facts of a particular case. 32. Before proceeding with the present contro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tant three applications is whether in view of the amendment brought under Section 202(1) of the Code of Criminal Procedure which came into effect from 23rd June, 2006, is it mandatory on the part of the Magistrate to postpone issue of process when an accused person is found to be residing outside the territorial jurisdiction of the said learned Court and thereafter either enquire 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. 37. It may be contended that Sub-section (1) has been amended to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself for direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused. It is argued that this has been done to see that innocent persons are not harassed by unscrupulous persons. 38. For proper appreciation of the entire issue, it may be mentioned that Section 190 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als with 'issue of process', also remains unaltered. Thus, when there is no sufficient ground for proceeding, the Magistrate may dismiss a complaint and where there is sufficient ground for proceeding, the Magistrate may issue process under Section 204 of the Code of Criminal Procedure No. restriction has been sought to be made in respect of the accused persons residing outside the territorial jurisdiction of any particular Court of Magistrate. 42. True, such amendment may go a long way to protect the unfortunate victims against unscrupulous complainants. But it is difficult to ignore the fact that the vast country of India does not only comprise of many and Union Territories, those again comprise of many districts, which again have many subdivisions, if not 'Chowki/Block'. The Magistrate in charge of a particular sub-division can only exercise jurisdiction in respect of the territory within the said sub-division. 43. There may be innumerable instances throughout the length and breadth of our country where two adjacent houses fall within the territorial jurisdictions of two separate sub-divisions, if not districts. In order to protect the people from the haras ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether or not there is sufficient ground for proceeding. 46. It is possibly needless to add that such observations are made keeping in mind the theory of harmonious construction. It is also necessary to hold that a provision of law should not be so interpreted so as to make it unrealistic. The manner in which Mr. Bhattacharya has sought to extend the scope and ambit of amendment of Section 202 of Code of Criminal Procedure, I am afraid, may lead to an absurd state of affairs. The basic principle of interpretation of statute is that a provision of law should not be so interpreted so as to lead to absurdity. The words and expressions used under Section 202(1) of Code of Criminal Procedure are quite plain and unambiguous. Those, in my opinion, do not deserve to be stretched to a point that the same adversely affects the interest of justice. There should be no attempt to read something more than what meets the eyes. 47. Accordingly, after hearing learned Counsel for both the parties and in the light of discussion as made hereinbefore, I find it difficult, if not impossible, to appreciate the grievances, as ventilated on behalf of the Petitioner. The instant three applications bei ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
