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TMI Blog2024 (9) TMI 917X X X X Extracts X X X X X X X X Extracts X X X X ..... with regard to the address. Accordingly, it would be necessary to assert whether the Learned Trial Magistrate should follow the provisions of sub-section (1) of Section 202 of the CrPC and for that this Court relied a judgment placed by the opposite parties passed in S. S. Binu v. State of West Bengal and another [ 2018 (5) TMI 2157 - CALCUTTA HIGH COURT] where the Division Bench observed ' keeping in mind the object sought to be achieved by way of amendment of sub-section (1) of Section 202, Cr.P.C., the nature of enquiry as indicated in Section 19 of the Criminal Procedure (Amendment) Act, 2005, the Magistrate concerned is to ward of false complaints against such persons who reside at far of places with a view to save them for unnecessary harassment and the Learned Magistrate concerned is under obligation to find out if there is any matter which calls for investigation by Criminal Court in the light of the settled principles of law holding an enquiry by way of examining the witnesses produced by the complainant or direct an investigation made by a police officer. This Court finds that the Learned Chief Metropolitan Magistrate has carefully perused the complaint supported by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es (1997) Private Limited having its office at 14, P.N. Banerjee Road, P.O. and P.S. Budge Budge, District South 24 Parganas, Pin Code No. 743319 has issued 22 cheques of different amounts on the different dates aggregating to a sum of Rs. 5,17,00,000/- only in favour of the complainant to discharge its existing liabilities which was accrued out of business transaction between the accused and the complainant. 3b. Those cheques were presented on 9th and 12th September, 2005 with the Central Bank of India, New Market Branch having its office at New Market, P.S. New Market at Calcutta 700 001 but the said cheques were dishonoured by the bankers of the accused/petitioner on the ground of insufficient funds . Such intimation has been received from the said bank on the same dates i.e. on 9th and 12th September, 2005, but in spite of issuing notice upon the accused person in or about 5th October, 2005, failed to pay the same. The notice was received and acknowledged by the accused person on 8th October, 2005. 3c. The accused committed an offence under Section 138 read with Section 142 of the NI Act, 1881 since issuance of cheques is prima facie a conclusive proof of the accused existing l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complaints under Section 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. The same view has been reflected in Sunil Todi another s case passed on 03.12.2021 by Hon ble Apex Court. 12. In the present case, the Ld. Magistrate had held the evidence of the complainant on affidavit and this means that the Magistrate had already held an inquiry by herself and so the Magistrate has power to postpone section 202 Cr.P.C by holding inquiry by holding separate agencies. 13. If that be so, this Court finds that the impugned order passed by the Ld. Magistrate requires no interference and thus, the impugned order is affirmed. Under the above circumstances, the present Criminal Revisional application has been filed before this Hon ble High Court and came up before this Bench for its disposal. 4. Learned counsel, representing the petitioner, submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2017) 1 SCC (Cri) 270 wherein the Hon ble Apex Court held that Postponement of issue of process by Magistrate Purpose of - Held, is to avoid unnecessary harassment to proposed accused Complaint regarding dishonour of cheque under S. 138, NI Act Plea of appellant-accused, that he being resident of area outside territorial jurisdiction of Magistrate who issued summons, an enquiry within meaning of S. 202 CrPC was mandatory, and since that was not done, order of cognizance and issuance of summons was bad in law . 4b. The learned counsel further placed reliance upon several judgments with regard to the enquiry under Section 202 of the CrPC is compulsory as under: i. Abhijit Pawar v. Hemant Madhukar Nimbalkar and another AIR 2017 SC 299; ii. Sunil Todi and Ors. V. State of Gujarat and Anr. AIR 2022 SC 147, AIROnline 2021 SC 1120; iii. Krishna Nand Shastri and Others v. State of Jharkhand 2023 SCC OnLine Jhar 517. 4c. It was further submitted that the Learned Sessions Judge also neglected/ignored the observation of the Learned Trial Magistrate to the effect that since the opposite party no. 1 being public servant of Government of West Bengal undertaking so his examination under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 145 of the N.I. Act, 1881. It is true that Section 202 of the CrPC was amended for conducting an enquiry before issuing of process which came into effect from 23.06.2006 but such enquiry is not at all applicable if requisite satisfaction can be obtained by the Learned Magistrate from the materials available on the record. Rather, the judgment in Re: expeditious trial of cases under Section 138 of the NI Act, 1881 referred by the learned counsel appearing on behalf of the petitioner is not applicable in the present facts and circumstances. 5a. The complaint was supported by an affidavit. The Learned Trial Court has examined the witness and further relied upon the materials available on the record and after being satisfied himself issued process. According to the amendment provided under Section 145 of the NI Act, 1881, affidavit may be accepted as an evidence during enquiry or trial as a consequence during enquiry under Section 200 of CrPC instead of examining the complainant, a Magistrate can accept the affidavit affirmed by him. When there is such provision for acceptance of complainant on the basis of affidavit affirmed by him, the compliance of Section 202 of CrPC is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed not re-examine them. Section 201-Procedure by Magistrate not competent to take cognizance of the case. If the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall, (a) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect; (b) if the complaint is not in writing, direct the complainant to the proper Court. Section 19 of the Criminal Procedure (Amendment) Act, 2005 has been promulgated by the legislature for amending sub-section (1) of Section 202 CrPC which came into force with effect from June 23, 2006. By virtue of the aforesaid amendment, the word shall has been inserted in sub-section (1) of Section 202 Cr.P.C. After the above amendment sub-section (1) of Section 202 Cr.P.C. runs as follows: - Section 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 a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. (5) Nothing in this section shall be deemed to affect the provisions of section 87. Section 145 of the Negotiable Instruments Act, 1881 reads as under: Section 145-Evidence on affidavit. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code. (2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein. 7. In view of the contention of the parties as well as backdrop of the aforesaid relevant provisions of law, this Court has to decide the following issues: - (i) Whether the amendment of Section 202 of the Code of Criminal Procedure, 1973 as enacted vide Section 19 of the Criminal Procedure (Amendment) Act, 2005 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 20. Section 202 of the Code has twin objects; one, to enable the Magistrate to scrutinize carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an unnecessary, frivolous or meritless complaint and the other, to find out whether there is some material to support the allegations made in the complaint. The Magistrate has a duty to elicit all facts having regard to the interest of an absent accused person and also to bring to book a person or persons against whom the allegations have been made. To find out the above, the Magistrate himself may hold an inquiry under Section 202 of the Code or direct an investigation to be made by a police officer. The dismissal of the complaint under Section 203 is without doubt a pre-issuance of process stage. The Code does not permit an accused person to intervene in the course of inquiry by the Magistrate under Section 202. The legal position is no more res integra in this regard. More than five decades back, this Court in Vadilal Panchal v. Dattatraya Dulaji Ghadigaonker (AIR 1960 SC 1113) with reference to Section 202 of the Criminal Procedure Code, 1898 (correspon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iry has been defined under Section 2 (g) of the Code, the same reads as follows: 2. xxx xxx xxx (g) inquiry means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court; xxx xxx xxx . It is evident from the aforesaid provision, every inquiry other than a trial conducted by the Magistrate or Court is an inquiry. No specific mode or manner of inquiry is provided under Section 202 of the Code. In the inquiry envisaged under Section 202 of the Code, the witnesses are examined whereas under Section 200 of the Code, examination of the complainant only is necessary with the option of examining the witnesses present, if any. 18. This exercise by the Magistrate, for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused, is nothing but an inquiry envisaged under Section 202 of the Code. In the present case, as we have stated earlier, the Magistrate has examined the complainant on solemn affirmation and the two witnesses and only thereafter he had directed for issuance of process. In view of what we have observed above, we do not find any error in the order impugned. In the result, we do not find any merit in the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... calls for investigation by Criminal Court in the light of the settled principles of law holding an enquiry by way of examining the witnesses produced by the complainant or direct an investigation made by a police officer as discussed hereinabove. The Hon ble Division Bench of this court finally came to conclusion and answered in following manner in paragraph 100 of the aforesaid judgement as under: I . II III . IV V. In cases falling under Section 138 read with section 141 of the N.I. Act, the Magistrate is not mandatorily required to comply with the provisions of Section 202 (1) before issuing summons to an accused residing outside the territorial jurisdiction of the Learned Magistrate concerned. 9. Most of the judgments relied on behalf of the petitioner were meticulously considered by the Hon ble Supreme Court in the case of Sunil Todi and Ors. Vs. State of Gujarat Anr. AIR 2022 SC 47 wherein the Hon ble Supreme Court while deciding the Issue No. 2 i.e. whether the Magistrate, in view of the Section 202, ought to have postponed the issuance of process in a complaint case filed under Section 138 of the NI Act, 1881 had held thoroughly in paragraphs 31 to 40 as under: 31. The seco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt case reside at Aurangabad while the complaint under Section 138 was filed before the Magistrate in Mundra. The argument of the appellants is that in these circumstances, the Magistrate was duty bound to postpone the issuance of process and to either enquire into the case himself or to direct an investigation either by a police officer or by some other person. Section 203 stipulates that if the Magistrate is of the opinion on considering the statement on oath, if any, of the complainant and of the witnesses, and the result of the enquiry or investigation if any under Section 202 that there is no sufficient ground for proceeding, he shall dismiss the complaint recording briefly his reasons for doing so. The requirement of recording reasons which is specifically incorporated in Section 203 does not find place in Section 202. Section 204 which deals with the issuance of process stipulates that if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, he may issue (a) in a summons case, a summons for attendance of the accused; (b) in a warrant case, a warrant or if he thinks fit a summons for the appearance of the accused. These p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused. The use of the expression shall prima facie makes the inquiry or the investigation, as the case may be, by the Magistrate mandatory. The word shall is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory. The use of the word shall in all circumstances is not decisive. Bearing in mind the aforesaid principle, when we look to the intention of the legislature, we find that it is aimed to prevent innocent persons from harassment by unscrupulous persons from false complaints. Hence, in our opinion, the use of the expression shall and the background and the purpose for which the amendment has been brought, we have no doubt in our mind that inquiry or the investigation, as the case may be, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate. 34. This Court has held that the Magistrate is duty bound to apply his mind to the allegations in the complaint together with the statements which are recorded in the enquiry while determining whether there is a pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 CrPC, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 CrPC, by issuing process for appearance. The application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 CrPC, the High Court under Section 482 CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one's dignity, self-respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment. These decisions were cited with approval in Abhijit Pawar v. Hemant Madhukar Nimbalkar (2017) 3 SCC 528: AIR 2017 SC 299. After referring to the purpose underlying the amendment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate is not to act as a post office in taking cognizance of the complaint, in Mehmood Ul Rehman [Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420: (2016) 1 SCC (Cri) 124] The above principles have been reiterated in the judgment in Krishna Lal Chawla v. State of U.P [(2021) 5 SCC 435: AIR 2021 SC 1381]. 37. In this backdrop, it becomes necessary now to advert to an order dated 16 April 2021 of a Constitution Bench in Re: Expeditious Trial of Cases under Section 138 of N.I. Act 1881 [Suo Motu Writ Petition (Cri) No. 2 of 2020, decided on 16 April 2021 (Reported in AIR 2021 SC 1957]. The Constitution Bench notes the gargantuan pendency of complaints filed under Section 138 and the fact that the situation has not improved as courts continue to struggle with the humongous pendency . The court noted that there were seven major issues which arose from the responses filed by the State Governments and the Union Territories including in relation to the applicability of Section 202 of the CrPC. Section 143 of the NI Act provides that Sections 262 to 265 of the CrPC (forming a part of Chapter XXI dealing with summary trials) shall apply to all trials for offences punishable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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. The learned Amici Curiae recommended that the Magistrate should come to a conclusion after holding an inquiry that there are sufficient grounds to proceed against the accused. We are in agreement with the learned Amici. 38. Section 145 of the NI Act provides that evidence of the complainant may be given by him on affidavit, which shall be read in evidence in an inquiry, trial or other proceeding notwithstanding anything contained in the CrPC. The Constitution Bench held that Section 145 has been inserted in the Act, with effect from 2003 with the laudable object of speeding up trials in complaints filed under Section 138. Hence, the Court noted that if the evidence of the complainant may be given by him on affidavit, there is no reason for insisting on the evidence of the witnesses to be taken on oath. Consequently, it was held that Section 202(2) CrPC is inapplicable to complaints under Section 138 in respect of the examination of witnesses on oath. The Court held that the evidence of witnesses on behalf of the complai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter was fixed for cross-examination. Thereafter, at the stage of cross-examination, the accused person filed petition after more than a year on 05.04.2022 for examination under Section 202 of the CrPC. In addition, it is admitted fact that the complaint has been filed by a Public Servant of West Bengal Essential Commodities Supply Corporation Ltd., a Government of West Bengal Undertaking Company. The complainant was acting or purporting to act in discharge of his official duties. Therefore, the Impugned Order dated 20.05.2022 passed by the Learned Metropolitan Magistrate cannot be held to be invalid or incorrect. This Court does not find any infirmity far less any jurisdictional error in the Order impugned. The judgment delivered in the cases of S.S. Binu V. State of West Bengal and another reported in 2018 Crl.L.J 3769 and Sunil Todi and Ors. Vs. State of Gujarat Anr. reported in AIR 2022 SC 47 are squarely applicable in the present facts and circumstances of the instant case. Hence, this Court endorsed the concurrent findings of both the Learned Trial Court and Learned Sessions Judge. 12. Accordingly, C.R.R. 3849 of 2022 is, thus, dismissed. Connected applications, if any, are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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