E.K. Jaleel vs The State Of Kerala

WEDNESDAY, THE 28TH DAY OF JUNE 2017/7TH ASHADHA, 1939

Crl.MC.No. 534 of 2017 () -------------------------- CC. NO.2831/2015 OF SPECIAL JUDICIAL FIRST CLASS MAGISTRATE COURT (N.I. ACT CASES), KOZHIKODE. .....

PETITIONER/ACCUSED NO.3: -------------------------------------------

E.K. JALEEL, S/O. KOYAN, INJAKKUDI HOUSE, NORTH EDATHALA, ALUVA P.O, ERNAKULAM DISTRICT.

BY ADV. SRI.BABU S. NAIR.

RESPONDENTS/STATE & COMPLAINANT: ------------------------------------------------------------

1. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI- 682 031.

2. E.O. MIRSHAD, S/O.T.K. MAMMEDKOYA, MAYINKUTTY HOUSE, CHALIL BAZAR JUNCTION, PUTHIYANGADI P.O, KOZHIKODE DISTRICT, PIN -673 021.

R1 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY.

THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/03/2017, THE COURT ON 28/06/2017 PASSED THE FOLLOWING:

rs. Crl.MC.No. 534 of 2017

APPENDIX

PETITIONER'S ANNEXURES:-

ANNEXURE A TRUE COPY OF THE COMPLAINT FILED BY THE 21ND RESPONDENT AS CC.NO. 2831/2015 BEFORE THE SPECIAL JUDICIAL FIRST CLASS MAGISTRATE (NI ACT CASES) KOZHIKODE.

RESPONDENT'S ANNEXURES:- NIL.

//TRUE COPY//

P.S.TO JUDGE

rs.

ALEXANDER THOMAS, J. ================== Crl.M.C.No. 534 of 2017 ================== Dated this the 28th day of June, 2017 O R D E R

The prayer in this Criminal Miscellaneous Case filed under Sec.482

of the Cr.P.C. is for an order from this Court to quash the entire

proceedings in C.C.No. 2831/2015 on the file of the Special Judicial First

Class Magistrate's Court (N.I.Act Cases), Kozhikode, on the ground that

the cognizance in this case has been taken by learned Magistrate, without

conducting the inquiry as contemplated under Sec. 202 of the Cr.P.C.

2. The brief facts in this case may be stated as follows:- The

petitioner herein is implicated as accused No.3 in the impugned Anx.A

complaint filed by the 2nd respondent alleging offence punishable under

Sec.138 of the Negotiable Instruments Act. The complaint proceeds on

the basis that the dishonoured cheque in question for an amount of

Rs. 35 lakhs, has been been drawn from the account maintained by the

1st accused company and that the signatory of the said cheque is accused

No.2. Further that the 2nd accused and the petitioner (A-3), who are

stated to be the directors of the 1st accused company, are actually

involved and participating in the day to day affairs of the 1st respondent

company, etc. The main allegation raised in the complaint is that by

offering the sale of metal scraps, an amount of Rs.35 lakhs was received

by the 1st accused company with the knowledge of 2nd and 3rd accused Crl.M.C.534/17 - : 2 :-

and that the 2nd accused has issued cheque dated 13.6.2015 for an

amount of Rs.35 lakhs drawn from the account of the 1st accused

company and in favour of the complainant, which when presented had

dishonoured on the reason "exceeds arrangement". Thereafter the

complainant had sent statutory demand notice by registered post in

terms of Sec.138 proviso (b) calling upon the accused to pay the

amounts covered by the cheque within 15 days from the date of receipt

of the notice and the said notice was received by the 1st accused on

7.10.2015 and the notice sent to A-2 and A-3 were returned unserved

with the endorsement, "unclaimed". After complying with the statutory

formalities, the instant complaint has been filed before the Special

Judicial First Class Magistrate's Court (N.I. Act Cases), Kozhikode. It is

further averred that immediately on filing the complaint, the learned

Magistrate had taken cognizance of the complaint without even

conducting an inquiry under Sec.202 of the Cr.P.C. and had straightaway

issued summons to all the 3 accused in the complaint which was taken

on file as C.C.No.2831/2015. It is contended by the petitioner that Anx.A

complaint is not maintainable and further that the 2nd accused is not the

solitary authorised signatory of the 1st accused company and that as per

the instructions of the 1st accused company with their bank, the

authorised signatories of the cheque drawn from the account of A-1

company is both A-2 and the petitioner (A-3). Further that if the Crl.M.C.534/17 - : 3 :-

signature of only one of the authorised signatory is there in the cheque of

the company, the same will never be honoured as both signatures are

necessary for valid cheque of the company. Thus it is contended that

even going by the averments in the complaint, the cheque that was

issued from the account of the company was not a valid one, which

could not have been honoured in any view of the matter, irrespective as

to whether or not sufficient balance was there in the account. Further that

even as per the admitted averments in the complaint, the petitioner (A-

3) has not signed the dishonoured cheque. Thus the main contention

raised by the petitioner is that the cheque in question is not a valid

cheque on which no cognizance could have been taken by the learned

Magistrate and further that all the 3 accused are residing beyond the

territorial limits of the Magistrate court concerned and that therefore in

view of the amendment brought in the provisions of Sec.202 in the

Cr.P.C. as inserted by Sec. 19 of the Cr.P.C. (Amendment) Act, (Central

Act, 25 of 2005) with effect from 23.6.2006, it was mandatory on the

part of the learned Magistrate to have conducted an inquiry as

contemplated in Sec.202 of the Cr.P.C. The petitioner would contend that

the said inquiry is mandatory with effect from 23.6.2006 and that the

impugned action of the magistrate in taking cognizance of the offence

with the complaint without conducting such a mandatory inquiry under

Sec.202 of the Cr.P.C. is illegal which would go to the root of the matter.

Crl.M.C.534/17 - : 4 :-

Further that, had an inquiry been conducted by the learned Magistrate

under Sec. 202 of the Cr.P.C. by examining the bank officials, it would

have been very clear that the cheque is invalid one, without the signature

of the petitioner (A-3) and that the petitioner cannot be prosecuted

under any circumstances for the offence under Sec.138 of the N.I. Act on

the basis of such an invalid cheque, which does not admittedly bear the

signature of the petitioner, even though he is an authorised signatory and

that only if both the signatures of accused 2 and 3 are appended in the

cheque, can the signature be treated as a valid one.

3. Heard Sri.Babu S.Nair, learned counsel appearing for the

petitioner (accused) and Sri.Saigi Jacob Palatty, learned Prosecutor

appearing for R-1 State. In the nature of the orders proposed to be

passed in this petition, notice to R-2 (complainant) will stand dispensed

with.

4. Secs.190, 200, 202, 203 and 204 of the Code of Criminal

Procedure provide as follows:

"Sec.190: Cognizance of offences by Magistrates.- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence--

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such Crl.M.C.534/17 - : 5 :-

offences as are within his competence to inquire into or try.

Sec. 200: Examination of complainant.- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses--

(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or

(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192:

anotherProvided further that if the Magistrate makes over the case to Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.

xxx xxx xxx

Sec. 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 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 Sessions; 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 Crl.M.C.534/17 - : 6 :-

except the power to arrest without warrant.

Sec. 203: Dismissal of complaint.- If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.

Sec. 204: Issue of process.- (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be--

(a) a summons-case, he shall issue his summons for the attendance of the accused, or

(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.

(2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.

(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.

(4) When by any law for 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."

5. It may be noted that the words, "and shall in a case where the

accused is residing at a place beyond the area in which he exercises his jurisdiction"

appearing in Sec.202(1) have been inserted by Sec.19 of the Code of

Criminal Procedure (Amendment) Act, (Central Act 25 of 2005), with

effect from 23.6.2006. This was found essential in the opinion of the

Parliament, as false complaints were filed against persons residing at far

off places in order to harass them and the note for amendment reads as Crl.M.C.534/17 - : 7 :-

follows:

"False complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause seeks to amend sub- section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or 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."

6. Secs.143 and 145 of the Negotiable Instruments Act read as

follows:

Notwithstanding anything contained intothetry "Sec.143: Power of Court cases summarily.- (1) Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of Sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials:

Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one yea r and an amount of fine exceeding five thousand rupees:

Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.

(2) The trial of a case under this section shall, so far as practicable, consistently with the interests of justice, be continued from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing.

(3) Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint.

xxx xxx xxx

Sec.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, Crl.M.C.534/17 - : 8 :-

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. The Gujrat High Court in the judgment in Modern Denim

Limited & Ors. v. State of Gujurat & Anr. reported in 2016 KHC 3342 =

2016 CrLJ NOC 184, has held that when Sec.143 of the Act provides that

the provisions of Sec. 262 and 265 of the Cr.P.C. shall, as far as may be,

applied to the trial for the offence under Sec.138 of the Code, Legislature

while employing the non-obstante clause in Sec.143 of the N.I. Act,

intended to permit following simple procedure meant for trial of

summons cases by the magistrate and such provisions would override the

general requirement of holding inquiry under Sec.202 of the Cr.P.C.

before issuing process to the accused residing outside the jurisdiction of

the magistrate.

8. It will be pertinent to refer to paras 16 to 19 of the abovesaid

judgment of the Gujrat High Court in Modern Denim Limited's case

supra, which read as follows:

provides thatS.143offences under the Chapter XVI of the Act shall be tried

16. of the Act which starts with non obstante clause by the Judicialthe Magistrate of First Class or the Metropolitan Magistrate and the provisions of S.262 to 265 (both inclusive) of the Code shall, as far as may be, apply to such trials. Then, it further provides for the powers of the Magistrate for conviction in summary trial and to follow further procedure as mentioned therein, if the Magistrate finds it undesirable to try the case summarily.

summons alsoS.144

17.

giving of evidence bywithcomplainant on affidavit which could be read in startsofthe non - obstante clause. S.145 then provides for the Act which prescribes Mode of service of Crl.M.C.534/17 - : 9 :-

evidence in any inquiry, trial or other proceedings under the Code. Reading the above said three provisions together, it clearly appears that the process to be issued on the complaint for the offence under S.138 is as per the procedure contained in the above said provisions read with the provision of the Code for such purpose which are not to be deemed or treated excluded by virtue of non - obstante clause in S.143 to 145.

18. It appears that the basic object for providing non - obstante clause is to do away with the procedure to be followed as per S.200 to 202 in its rigidity to see that the trial of the complaint for the offence under S.138 of the Act is concluded without any inordinate delay. Therefore, when S.143 of the Act provides that the provisions of S.262 to 265 of the Code shall, as far as may be, applied to the trial for the offence under S.138 of the Code, the legislature while employing the non -

obstante clause intended to permit following simple procedure meant for trial of summons cases by the Magistrate and such provisions would override the requirement of holding inquiry under S.202 of the Code before issuing process to the accused residing out side the jurisdiction of the Magistrate.

19. Reliance placed by Mr. Dave in the case of National Bank of Oman (supra) to press for his point that holding of inquiry by the Magistrate is mandatorily required before issuing process to the accused residing beyond the jurisdiction of the Magistrate will be of no help to the applicants as the complaint in the said case was not for the offence under S.138 of the Act. In such view of the matter, it is not possible to accept the contention of Mr. Dave that the mandatory requirement of holding inquiry under S.202 of the Code before issuing the process to the applicants who resided out side the jurisdiction of the Magistrate was required to be followed by the learned Magistrate."

9. Further it was also held in para 25 of the said judgment

of the Gujrat High Court that Secs.142 to 147 of the Negotiable

Instruments Act lay down a special Code for the trial of offence under

Chapter XVII of the N.I. Act and Secs.143 to 147 S.143 to 147 were

inserted in the Act by the N.I. (Amendment and Miscellaneous Provisions)

Act, 2002 to do away with all the stages and processes in a regular

criminal trial that normally cause inordinate delay in its conclusion and to

make the trial procedure as expeditious as possible, without in any way

compromising on the right of the accused for a fair trial. Since the Crl.M.C.534/17 - : 10 :-

number of cases under Sec.138 of the N.I. Act is piling up in great

multitude, the objective of the Parliament for fast and expeditious

conclusion of trial in such cases was held to be a very important aspect

as otherwise cases under the N.I. Act could continue to pile up giving

rise to a huge and unbearable burden on the criminal court system. In

para 22 of the decision in Modern Denim's case supra, the Gujrat High

Court has also referred to the various directives issued by the Apex

Court in Indian Bank Association & Ors. v Union of India reported in

(2014) 5 SCC 590, paras 16, 18, 20, 22 and 23 thereof, which read as

follows:

"16. Considerable time is usually spent for recording the statement of the complainant. The question is whether the Court can dispense with the appearance of the complainant, instead, to take steps to accept the affidavit of the complainant and treat the same as examination - in - chief. S.145(1) gives complete freedom to the complainant either to give his evidence by way of affidavit or by way of oral evidence. The Court has to accept the same even if it is given by way of an affidavit. Second part of S.145(1) provides that the complainant's statement on affidavit may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceedings. S.145 is a rule of procedure which lays down the manner in which the evidence of the complainant may be recorded and once the Court issues summons and the presence of the accused is secured, an option be given to the accused whether, at that stage, he would be willing to pay the amount due along with reasonable interest and if the accused is not willing to pay, Court may fix up the case at an early date and ensure day - to - day trial.

xxx xxx xxx

can give18. evidence by way of an affidavit and such affidavit shall be read hisWe have indicated that under S.145 of the Act, the complainant

in evidence in any inquiry, trial or other proceedings in the Court, which makes it clear that a complainant is not required to examine himself twice i.e. one after filing the complaint and one after summoning of the accused. Affidavit and the documents filed by the complainant along with complaint for taking cognizance of the offence are good enough to be read in evidence at both the stages i.e. pre - summoning stage and the post summoning stage. In other words, there is no necessity to recall and re - examine the complaint after summoning of accused, unless the Crl.M.C.534/17 - : 11 :-

Magistrate passes a specific order as to why the complainant is to be recalled. Such an order is to be passed on an application made by the accused or under S.145(2) of the Act suo moto by the Court. In summary trial, after the accused is summoned, his plea is to be recorded under S.263(g) Cr.P.C. and his examination, if any, can be done by a Magistrate and a finding can be given by the Court under S.263(h) Cr.P.C. and the same procedure can be followed by a Magistrate for offence of dishonour of cheque since offence under S.138 of the Act is a document based offence. We make it clear that if the proviso (a), (b) & (c) to S.138 of the Act are shown to have been complied with, technically the commission of the offence stands completed and it is for the accused to show that no offence could have been committed by him for specific reasons and defences.

xxx xxx xxx

20. Amendment Act, 2002 has to be given effect to in its letter and spirit. S.143 of the Act, as already indicated, has been inserted by the said Act stipulating that notwithstanding anything contained in the Code of Criminal Procedure, all offences contained in Chapter XVII of the Negotiable Instruments Act dealing with dishonour of cheques for insufficiency of funds, etc. shall be tried by a Judicial Magistrate and the provisions of S.262 to 265 Cr.P.C. prescribing procedure for summary trials, shall apply to such trials and it shall be lawful for a Magistrate to pass sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding Rs.5,000/- and it is further provided that in the course of a summary trial, if it appears to the Magistrate that the nature of the case requires passing of the sentence of imprisonment exceeding one year, the Magistrate, after hearing the parties, record an order to that effect and thereafter recall any witness and proceed to hear or rehear the case in the manner provided in Criminal Procedure Code.

xxx xxx xxx country22. We notice, considering all those aspects, few High Courts of the have laid down certain procedures for speedy disposal of cases under S.138 of the Negotiable Instruments Act. Reference, in this connection, may be made to the judgments of the Bombay High Court in KSL and Industries Ltd. v. Mannalal Khandelwal, Indo International Ltd. and another v. State of Maharashtra and and Harischandra Biyani v. Stock Holding Corporation of India Ltd., the judgment of the Calcutta High Court in Magma Leasing Ltd. v. State of West Bengal and the judgment of the Delhi High Court in Rajesh Agarwal v. State.

view,are23. Many of the directions given by the various High Courts, in our worthy of emulation by the Criminal Courts all over the country dealing with cases under S.138 of the Negotiable Instruments Act, for which the following directions are being given : -

xxx xxx xxx"

10. The Calcutta High Court in the judgment in Biswanath

Maheswari v. M/s. Navbharat Tea Processing Pvt. Ltd. reported in 2011 Crl.M.C.534/17 - : 12 :-

KHC 6343= 2011 CrLJ 2373 has held in para 45 thereof that in spite of

the amended provisions contained in Sec. 202 of the Cr.P.C., there is no

reason as to why a criminal court, if prima facie satisfied as to the

existence of an offence under Sec.138 of the N.I. Act, cannot straightway

proceed from Sec.200 to Sec.204 of Cr.P.C., and it is not necessary to

compulsorily pass through Sec.202 so as to reach either Sec.203 or

Sec.204 of Cr. P. C. and it is only in a scenario a Court of Magistrate fails

to satisfy himself/herself regarding the existence of such a prima facie

case, but does not think that such a case deserves to be dismissed, that

under Sec.202 of the Cr.P.C., a court can postpone the issue of process

and direct further inquiry or investigation under S.202(1) of Cr.P.C. That

if the accused person resides at a place outside the territorial jurisdiction

of that court of Magistrate, it is for the said court to inquire into the case

himself or direct an investigation to be made by a police officer, etc. It is

relevant to refer paras 45 and 46 of the said judgment of the Calcutta

High Court in Biswanath's case supra, which read as follows:

Chapter"45. of the Code, I do not find any reason as to why a learned After taking into consideration the various provisions under XV Court if prima facie satisfied as to the existence of an offence cannot straightway proceed from S.200 to S.204 of Cr. P. C. I do not think it necessary to compulsorily pass through S.202 so as to reach either S.203 or S.204 of Cr. P. C. It is only when a Court of Magistrate fails to satisfy itself regarding the existence of a prima facie case but does not think that such a case deserves to be dismissed then and there under S.203 of Cr. P. C., a Court can postpone the issue of process and direct further investigation under S.202(1) of Cr. P. C. And, if the accused person resides at a place outside the territorial jurisdiction of that Court of Magistrate, it is for the said learned Court to 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.

Crl.M.C.534/17 - : 13 :-

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 S.202 of Cr. P. C., 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 S.202 (1) of Cr. P. C. 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.

11. The Punjab & Haryana High Court in Piyush Bharat Saini v.

Paras Gupta, reported in 2014 KHC 2939 has held that Sec. 202 of the

Cr.P.C. inquiry under the amended provisions, may not necessarily be

insisted upon in those cases tried under the Negotiable Instruments Act

where the accused person resides outside the jurisdiction of the

Magistrate and rigours of the amended provisions of Sec.202 laying

down a requirement of holding an inquiry where person sought to be

summoned is outside jurisdiction of the court, would not apply in cases

of offences under Sec. 138 of the N.I. Act. That strict requirement of Sec.

202 of the Cr.P.C. may not be the need in cases under the N.I. Act as that

may tend to negate the very purpose of expeditious disposal of the cases

under the Act and may also nullify the effect of special provisions made

under the Act. It will be relevant to refer to para 35 of the said judgment

of the Calcutta High Court in Piyush Bharat's case supra, which reads as

follows:

"35. The aim of these provisions is to ensure a speedy trial and expeditious disposal of cases, which are found to have clogged the criminal justice system. If strict adherence in such cases where certain Crl.M.C.534/17 - : 14 :-

evidences can be led under the enabling provisions made under the Act is insisted upon then it would negate the requirement of expeditious disposal of the cases, which is the aim under the Act. Thus, the view expressed in the line of cases that enquiry as envisaged under the amended provisions of S.202 CrPC may not necessarily be insisted upon in those cases tried under the Act where the accused person resides outside the jurisdiction of the Magistrate is reasonable. However, the ratio of law laid down in S. K. Bhowmik's case (supra) and other line of decisions still will hold good and can not be taken to have been diluted in any manner in view of the observations made above. I am inclined to hold that the strict requirement of S.202 CrPC may not be the need in cases under the Act as that may tend to negate the very purpose of expeditious disposal of the cases under the Act and may also nullify the effect of special provisions made under the Act. The plea of the petitioner in all these petitions to quash the complaints and the summoning orders, thus, can not be accepted"

Dealing with the applicability of Sec. 202 inquiry provisions in the context

of the offence under Sec. 138 of the N.I. Act, the Bombay High Court in

the judgment in ASR Systems Pvt. Ltd. v. Kimberly Clark Hygiene

Products Pvt. Ltd. & Anr. reported in 2011 KHC 6505 = 2011 CrLJ 3558,

has held that such provisions in Sec. 202 are directory in nature as far as

the cases involving dishonour of cheque under Sec.138 of the N.I. Act are

concerned. That the very purpose of Sec.202 is to avoid unnecessary

inconvenience and harassment to accused, who may be living outside

territorial jurisdiction of the court and documents including original

cheques, return of the same as dishonoured, notices issued by the

complainant and the verification statement to the effect that payment

was not made in spite of notice, will all be sufficient materials for the

learned Magistrate to take a decision on the matter of issuance of

process and issuance of process as summons by the learned Magistrate

for offence under Sec. 138 of the Negotiable Instruments Act, cannot be Crl.M.C.534/17 - : 15 :-

quashed merely on the ground of not conducting an inquiry under Sec.

202 of the Cr.P.C. Para 4 of the abovesaid decision of the Bombay High

Court in ASR Systems' case supra, reads as follows:

"4. The learned counsel for the petitioner raised several grounds challenging the issuance of process. Firstly, according to the learned counsel, process was issued without following mandatory provision of making enquiry under S.202 of the Cr. P.C. when the accused are not situated outside the local jurisdiction of the Magistrate taking cognizance. According to him, in this case, both the accused persons are situated in Delhi while complaints were filed before J.M.F.C., Pune, therefore, it was mandatory to hold enquiry under S.202 Cr. P.C. before the process could be issued. The learned single Judge of this Court in Bansilal S. Kabra v. Global Trade Finance Ltd. 2010 (2) Bombay C.R. Criminal 754 held that provisions of S.202 about holding of enquiry before issuance of process when the accused is living outside the territorial jurisdiction of the Magistrate is directive and not mandatory. In another case, the learned single Judge of this Court held that the provision is mandatory but that application was rejected by the learned judge on the ground that the accused had come to the High Court at a belated stage. The learned counsel pointed out that the question has been referred to the larger Bench in view of two conflicting decisions. However, merely because question is referred to the larger bench, all the matters cannot be kept pending nor the proceedings can be stayed. The purpose of directing enquiry under S.202 Cr. P.C. is to avoid unnecessary inconvenience and harassment to the accused persons, who may be living outside territorial jurisdiction of the Court. However, where the contents of the complaint, verification statement and other documents produced along with the complaint make out prima - facie case for issuance of process, perusal of such material itself is preliminary enquiry and if the Court is satisfied that prima facie case is made out, process can be issued. Therefore, in my opinion, said provision in S.202 Cr. P.C. is directory in nature and merely because Magistrate has not recorded statements of several witnesses before issuing process, process cannot be quashed. In the present case, complainant had produced relevant documents including original cheques, documents about return of the same as dishonoured by the drawee bank, notices issued by the complainant to the accused, documents showing receipt of the same by the accused and the verification statement to the effect that payment was not made in spite of notice. In my opinion, this was sufficient material for the learned Magistrate to issue process."

12. While dealing with a case involved in offence under Sec. 418

and 420 of the I.P.C. the Apex Court in the judgment in National Bank of

Oman. v. Barakara Abdul Aziz & Anr. reported in (2013) 2 SCC 488,

that there is no error in the impugned judgment of the Bombay High Crl.M.C.534/17 - : 16 :-

Court in that case and held that it was incumbent upon the learned

Magistrate to conduct an inquiry, before issuing the process for those

offences. In that case, the respondent accused was residing outside the

territorial jurisdiction of the Chief Judicial Magistrate's Court concerned

and it was held that the duty of a Magistrate receiving a complaint is set

out in Sec. 202 CrPC and there is an obligation on the Magistrate to find

out if there is any matter, which calls for investigation by a criminal court

and the scope of enquiry under Sec. 202 Cr.P.C. is restricted only to find

out the truth or otherwise of the allegations made in the complaint in

order to determine whether process has to be issued or not and that the

investigation under Sec. 202 Cr.P.C. is different from the investigation

contemplated in Sec. 156 of the Cr.P.C., as the former is only to enable

the Magistrate to decide whether or not there is sufficient ground for him

to proceed further. Reference may be made to paras 8, 9 and 12 of the

said judgment of the Apex Court in National Bank of Oman's case supra

reported in (2013) 2 SCC 488, p.p.491-492., which read as follows:

"8. We find no error in the view taken by the High Court that the CJM, Ahmednagar had not carried out any enquiry or ordered investigation as contemplated under Section 202 CrPC before issuing the process, considering the fact that the respondent is a resident of District Dakshin Kannada, which does not fall within the jurisdiction of the CJM, Ahmednagar. It was, therefore, incumbent upon him to carry out an enquiry or order investigation as contemplated under Section 202 CrPC before issuing the process.

Section9. The duty of a Magistrate receiving a complaint is set out in 202 CrPC and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a criminal court. The scope of enquiry under this section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. Investigation under Crl.M.C.534/17 - : 17 :-

Section 202 CrPC is different from the investigation contemplated in Section 156 as it is only for holding the Magistrate to decide whether or not thereunder enquiry ascertainment ofSectionor202 is sufficient ground forCrPC to proceed further. The scopethe him of is, therefore, limited to truth falsehood of the allegations made in the complaint:

(i) on the materials placed by the complainant before the court;

(ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and

(iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have.

xxx xxx xxx

12. All the same, the High Court instead of quashing the complaint, should have directed the Magistrate to pass fresh orders following the provisions of Section 202 CrPC. Hence, we remit the matter to the Magistrate for passing fresh orders uninfluenced by the prima facie conclusion reached by the High Court that the bare allegations of cheating do not make out a case against the accused for issuance of process under Section 418 or 420 IPC. The CJM will pass fresh orders after complying with the procedure laid down in Section 202 CrPC, within two months from the date of receipt of this order."

13. In the decision in K.S.Joseph v. Philips Carbon Black Ltd.

reported in (2016) 11 SCC 105 = 2016 (2) KLT 542 (SC) the Apex Court

has dealt with a case, wherein it was inter alia contended that the

magistrate committed an illegality in taking cognizance of a time barred

complaint without condoning the delay in terms of Sec.142 (1)(b) proviso

and the further contention is that the learned Magistrate has committed

an illegality in taking cognizance without conducting inquiry under

Sec.202 of the Cr.P.C. even though the accused was residing outside the

jurisdiction of the magistrate court. The Apex Court noted therein that

the order sheet of the trial court does not disclose any application of

mind either to the issue of delay or to the requirement of Sec. 202 of the Crl.M.C.534/17 - : 18 :-

Cr.P.C. and since the order of the learned Magistrate in issuing summons

is clearly without due application of mind even on the crucial issue of

delay, the second contention regarding applicability of Sec.202 of the

Cr.P.C. was left open. Accordingly, the impugned order of the High Court

were set aside as well as the order of the learned Magistrate in taking

cognizance and summoning the accused were set aside and remitted to

the magistrate directing to reconsider the relevant facts of the complaint

including the issue of delay condonation, in accordance with law as well

as on the question as to the requirement of inquiry under Sec.202 of the

Cr.P.C. and to pass fresh orders in accordance with law. So in that case,

the Apex Court has clearly left open the issue as to the applicability of

Sec.202 of the Cr.P.C. in offence under Sec.138 of the Negotiable

Instruments Act. Para 10 of the said decision in Philips Carbon's case,

reads as follows:

"10. Learned counsel for the respondent-complainant could not place any material to counter the two submissions noted above. We have already noted earlier that the Order Sheet does not disclose any application of mind either to the issue of delay or to the requirement of S.202, Cr. P.C. Since the order of the Magistrate issuing summons is clearly without due application of mind to the issue of delay, we have not gone into the detailed consideration of the correctness of submission based upon S.202 of the Cr. P.C. and as to whether such requirement of enquiry or investigation is attracted even for offences under the Act. This question of law is therefore left open. But on the ground of non application of mind to the issue of delay and considering that the High Court has passed a summary order without even noticing the contentions advanced on behalf of the appellant, we set aside the impugned order of the High Court as well as the order of cognizance summoning the accused passed by the learned Magistrate. The Magistrate is directed to re-consider the relevant facts of the Complaint Case including the issue of delay and its condonation in accordance with law as well as the requirement of enquiry etc. under S.202 of the Cr. P.C. and pass fresh orders in accordance with law. The appeals stand allowed to the aforesaid extent."

Crl.M.C.534/17 - : 19 :-

However, it may be noted that the Apex Court in this case has overruled

the contention of the appellant therein that there was illegality in the

conduct of Sec. 200 preliminary inquiry insofar as the complainant was

not examined on oath, but that only his affidavit in terms of Sec. 145(1)

of the Negotiable Instruments Act was recorded, etc. In paras 4 and 5 of

the said judgment it has been held as follows:

"4. The non obstante clause in sub-section (1) of S.145 is self- explanatory and over-rules the requirement of examination of the complainant on solemn affirmation under S.200 of the Cr. P.C. Now the complainant is entitled to give his evidence on affidavit and subject to all just exceptions, the same has to be read in evidence in any enquiry, trial or other proceeding under the Cr. P.C. This view is also supported by the judgment of this Court in the case of Mandavi Co-operative Bank Ltd. v. Nimesh B. Thakore (2010 (1) KLT 321 (SC) = (2010) 3 SCC 83). No doubt this judgment was in a different factual scenario but this Court went into details of the amendment of 2002 including S.145 and in paragraph 18 it also noted the Statement of Objects and Reasons appended to the Amendment Bill. Inter alia, the objects included "to prescribe procedure for dispensing with preliminary evidence of the complainant".

5. In view of discussion made above, the plea based on S.200 of the Cr.P.C. is rejected as untenable. ...."

14. The Apex Court has considered the applicability of Sec.202 of

the Cr.P.C. in the judgment in Vijay Dhanuka & Ors. v. Najima Mamtaj &

Ors. reported in (2014) 14 SCC 638. The said case involved issuance of

summons in a complaint alleging commission of offence under Secs.323,

380 and 506 read with Sec. 34 of the I.P.C. The order issuing process in

that case was challenged by the accused persons by filing application

under Sec.482 of the Cr.P.C. before the Calcutta High Court on the

ground the said decision of the learned Magistrate is illegal as far as the

mandatory inquiry under Sec.202 of the Cr.P.C. was not conducted, even Crl.M.C.534/17 - : 20 :-

though the accused persons are residing outside the territorial

jurisdiction of the learned Magistrate. Their Lordships of the Supreme

Court in Vijay Dhanuk's case supra have held in para 12 thereof that the

word, "shall" ordinarily means mandatory, but some times taking into

account the context or intention, it can be held to be directory and use of

the word, "shall" in all circumstances is not decisive. However, that the

expression "shall" appearing in Sec.202(1) of the Cr.P.C. prima faice

makes the inquiry or the investigation, as the case may be, by the

magistrate mandatory. That amended provisions incorporated in Sec.

202(1) of the Cr.P.C. adding the words, "and shall in a case where the accused is

residing at a place beyond the area in which he exercises his jurisdiction" were made

effective with effect from 23.6.2006. The legislative intention is to

prevent innocent persons from harassment by unscrupulous persons

from false complaints. That hence considering the use of expression,

"shall" and the background and the purpose for which the amendment

has been given, it is clear that inquiry or the investigation, as the case

may be, is mandatory before summons are issued against the accused,

who are residing beyond the territorial jurisdiction of the magistrate.

Further it was held in para 14 thereof that the definition of "inquiry" as

per Sec.2(g) of the Cr.P.C. that every inquiry, other than a trial, conducted

by a magistrate or court is an inquiry and no mode or manner of inquiry

is provided under Sec.202 of the Cr.P.C. and that in the inquiry envisaged Crl.M.C.534/17 - : 21 :-

under Sec.202, the witnesses are examined whereas under Sec.200, the

examination of the complainant only is necessary with the option of

examining the witnesses present, if any. That this exercise by the

magistrate for the purpose of deciding whether or not there are sufficient

grounds for proceeding against the accused, is nothing but an inquiry

envisaged under Sec.202. In para 15 of the said judgment it was held that

in the facts of that case, the magistrate who had examined the

complainant on solemn affirmation and two witnesses and only thereafter

he can direct for issuance of process and thus, on facts it was held that

the magistrate has held the inquiry before issuing summons. It will be

pertinent to quote paras 12 to 16 of the abovesaid judgment of the Apex

Court in Vijay Dhanuka's case supra, which read as follows:

'12. The words "and shall", in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction" were inserted by Section 19 of the Code of Criminal Procedure (Amendment) Act (Central Act 25 of 2005) w.e.f. 23-6-2006. The aforesaid amendment, in the opinion of the legislature, was essential as false complaints are filed against persons residing at far off places in order to harass them. The note for the amendment reads as follows:

"False complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause seeks to amend sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or 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."

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 Crl.M.C.534/17 - : 22 :-

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.

State of13.

as in theU.P.In[view this Court has clearly held that the provision aforesaid of the decision of this Court in Udai Shankar Awasthi v. (2013) 2 Scc 435], this point need not detain us any further said case, is mandatory. It is apt to reproduce the following passage from the said judgment: (SCC p. 449, para 40)

"40. The Magistrate had issued summons without meeting the mandatory requirement of Section 202 CrPC, though the appellants were outside his territorial jurisdiction. The provisions of Section 202 CrPC were amended vide the Amendment Act, 2005, making it *mandatory to postpone the issue of process* where the accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned. The same was found necessary in order to protect innocent persons from being harassed by unscrupulous persons and making it obligatory upon the Magistrate to enquire into the case himself, or to direct investigation to be made by a police officer, or by such other person as he thinks fit for the purpose of finding out whether or not, there was sufficient ground for proceeding against the accused before issuing summons in such cases."

(emphasis supplied)

14. In view of our answer to the aforesaid question, the next question which falls for our determination is whether the learned Magistrate before issuing summons has held the inquiry as mandated under Section 202 of the Code. The word "inquiry" has been defined under Section 2(g) of the Code, the same reads as follows:

"2. (g) `inquiry' means every inquiry, other than a trial, conducted under this Code by a Magistrate or court;"

It is evident from the aforesaid provision, every inquiry other than a trial conducted by the Magistrate or the 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. 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.

15. 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.

16. In view of what we have observed above, we do not find any Crl.M.C.534/17 - : 23 :-

error in the order impugned [Vijay Dhanuka , In re, Criminal Revision No.508 of 2013 Order dated 19.2.2013 (Cal)]. In the result, we do not find any merit in the appeals and the same are dismissed accordingly.'

15. While dealing with cases involving offences under Sec.403

and 406 of the I.P.C.,the Apex Court in judgment in Udai Shankar

Awasthi v. State of U.P. & Anr. reported in (2013) 2 SCC 435, has held in

para 40 thereof as follows:

"40. The Magistrate had issued summons without meeting the mandatory requirement of Section 202 CrPC, though the appellants were outside his territorial jurisdiction. The provisions of Section 202 CrPC were amended vide the Amendment Act, 2005, making it mandatory to postpone the issue of process where the accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned. The same was found necessary in order to protect innocent persons from being harassed by unscrupulous persons and making it obligatory upon the Magistrate to enquire into the case himself, or to direct investigation to be made by a police officer, or by such other person as he thinks fit for the purpose of finding out whether or not, there was sufficient ground for proceeding against the accused before issuing summons in such cases. (See also Shivjee Singh v. Nagendra Tiwary [(2010) 7 SCC 578] p. 584, para 11 and National Bank of Oman v. Barakara Abdul Aziz [(2013) 2 SCC 488].

16. In Abhijit Pawar v. Hemant Madhukar Nimbalkar & Anr.

reported in 2017 KHC 6029 = 2017 (1) KLD 159 = 2016 (12) SCALE 788,

a contention was raised before the Apex Court that in the said private

complaint alleging offence punishable under Sec.499 of the I.P.C.

(defamation), the learned Magistrate has committed illegality in taking

cognizance of the offence against the accused, who are residing beyond

the territorial limits of the said magistrate court, etc. Therein the

provisions contained in Sec. 7 of the Press & Registration Act, 1867 was

also pressed into service. Thereby, it was contended that responsibility

is cast on the person who is declared as "editor" in the prescribed format Crl.M.C.534/17 - : 24 :-

under the Press & Registration Act, 1867 and making the said declared

editor responsible for those acts in view of the provisions of Sec.2(1) of

the Press & Registration Act, etc. The Apex Court therein by placing

reliance on abovecited Vijay Dhanuka's case supra in paras 24 to 29 of

the judgment of the case in Abhijit Pawar's case supra held as follows:

"24. The requirement of conducting enquiry or directing investigation before issuing process is, therefore, not an empty formality. What kind of 'enquiry' is needed under this provision has also been explained in Vijay Dhanuka case, which is reproduced hereunder:

"14.In view of our answer to the aforesaid question, the next question which falls for our determination is whether the learned Magistrate before issuing summons has held the inquiry as mandated under S.202 of the Code. The word "inquiry"has been defined under S.2(g) of the Code, the same reads as follows:

"2.(g) 'inquiry' means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court;"

It is evident from the aforesaid provision, every inquiry other than a trial conducted by the Magistrate or the Court is an inquiry. No specific mode or manner of inquiry is provided under S.202 of the Code. In the inquiry envisaged under S.202 of the Code, the witnesses are examined whereas under S.200 of the Code, examination of the complainant only is necessary with the option of examining the witnesses present, if any. 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 S.202 of the Code."

25. When we peruse the summoning order, we find that it does not reflected any such inquiry. No doubt, the order mentioned that the learned Magistrate had passed the same after reading the complaint, verification statement of complainant and after perusing the copies of documents filed on record, i.e., FIR translation of complaint, affidavit of advocate who had translated the FIR into English etc. the operative portion reads as under:

On considering facts on record, it appears that complainant has made out "

prima facie case against the accused for, the offences punishable under S.500, S.501, S.50 read with 34 of the Indian Penal Code. Hence issue process against the accused for the above offences returnable on 23/12/2009. case be registered as Summary Case."

26. Insofar as, these two accused persons are concerned there is no enquiry of the nature enumerated in S.202, CrPC.

Crl.M.C.534/17 - : 25 :-

27. The Learned Magistrate did not look into the matter keeping in view the provisions of S.7 of the Press Act and applying his mind whether there is any declaration qua these two persons under the said Act and, if not, on what basis they are to be proceeded with along with the editors. Application of mind on this aspect was necessary. It is made clear that this Court is not suggesting that these two accused persons cannot be proceeded with at all only because of absence of their names in the declaration under Press Act. What is emphasised is that there is no presumption against these persons under S.7 of the Press Act and they being outside the territorial jurisdiction of the concerned Magistrate, the Magistrate was required to apply his mind on these aspects while passing summoning orders qua A1 and A2.

28. No doubt, the argument predicated on S.202 of the CrPC was raised for the first time by A1 before the High Court. Notwithstanding the same, being a pure legal issue which could be tested on the basis of admitted facts on record, the High Court could have considered this argument on merits. It is a settled proposition of law that a pure legal issue can be raised at any stage of proceedings, more so, when it goes to the jurisdiction of the matter (See : National Textile Corpn. Ltd. v. Nareshkumar Badrikumar Jagad, 2011 KHC 4811 :

2011 (12) SCC 695 : AIR 2012 SC 264).

29. We may like to record that though Mr. Bhatt had refuted the arguments founded on S.202 of CrPC, even he had submitted that in case this Court is satisfied that mandatory requirement of S.202 is not fulfilled by the learned Magistrate before issuing the process, this Court can direct the Magistrate to do so. Mr. Bhatt, for this purpose, referred to the judgment in the case of the National Bank of Oman."

17. A learned Single Judge (R.Basant, J.) of this Court had occasion

to consider the applicability of the amended provisions of Sec.202 of the

Cr.P.C. in cases as in H.D.F.C. v. Jaleel, reported in 2008 (3) KLT 869 and

Usha Sanghi v. George Jacob, reported in 2008(4) KLT 649.

18. In H.D.F.C v. Jaleel, reported in 2008(3) KLT 869 it has been

held in para 13 thereof that what remained optional in Sec.202 prior to

amendment (with effect from 23.6.2006) is sought to be made

compulsory in respect of the class of persons residing outside the

territorial limits of the trial magistrate court by introduction of

amendment in Sec.202 and that the legislature was justified in making Crl.M.C.534/17 - : 26 :-

such a classification as persons residing the outside the territorial

jurisdiction of court, may be put to greater hardship, inconvenience and

harassment by an unjustified cognizance taken against them and that the

object of the amendment is to ensure that the unjustified cognizance

should not be taken against the individuals that they should not be

forced and compelled to face such unjustified prosecution and that a

magistrate taking cognizance against such class of persons residing

outside the jurisdiction must be more careful and circumspect before

cognizance is taken against them and process is issued and that the

anxiety of the legislature is thus clearly reflected in these provisions and

what remained optional is sought to be made compulsory in respect of a

class of persons by the introduction of the amendment of Sec. 202 of the

Cr.P.C. effective from 23.6.2006. However, in para 17 of the decision in

H.D.F.C's case supra, this Court held that where the magistrate himself

conducts the inquiry, there is virtually no difference between the inquiry

under Sec. 200 and inquiry under Sec. 202. That in considering the issue

as to when the inquiry under Sec.200 Cr.P.C. would end, and the inquiry

under Sec.202 would stand start, one cannot locate any such Rubicon

between the inquiry under Sec.200 Cr.P.C. and inquiry under Sec. 202

Cr.P.C. That under Sec.202 Cr.P.C., the magistrate himself may conduct

the inquiry and he or she may direct the Police or any other person to

conduct investigation and where he himself conducts inquiry, there is Crl.M.C.534/17 - : 27 :-

virtually no difference between the inquiry under Sec.200 and and inquiry

under Sec. 202. The learned Magistrate at the stage of S.202 Cr. P.C will

only record the sworn statements of witnesses cited, but not present at

the stage of S.200 Cr.P.C. and in a proceedings under S.138 of the N.I

Act, there can ordinarily be no scope for investigation by a police officer

or any other person. That in a given case it is quite possible that the

complainant may cite number of witnesses in addition to himself and

produce all of them before the Magistrate in the enquiry under S.200 Cr.

P.C. and if the complainant and all those witnesses are examined at the

stage of S.200 Cr.P.C and there is no need perceived for any investigation

by a police officer, nothing more would remain to be enquired into at the

stage of S.202 Cr.P.C. and it would be idle, puerile, unnecessary and a

sheer waste of time, in such a case to proceed to any enquiry under

S.202 Cr. P.C. That the requisite satisfaction under Sec.203/204 Cr.P.C,

must be entertained or not, in such a case at the end of the inquiry under

Sec.200 itself as nothing survives and it is unnecessary for the court in

such a case to proceed to the inquiry under Sec.202 Cr. P.C. The inquiry

under S.202 Cr.P.C in a case where no investigation is necessary, is not

qualitatively different from the inquiry under S.200 Cr.P.C. Further, it

was held in para 31 thereof that ordinarily in a prosecution under Sec.138

of the N.I Act, if a proper complaint is filed supported by necessary

documents and a proper affidavit of the complainant is filed under Crl.M.C.534/17 - : 28 :-

Sec.145(1) it may not be necessary for the Magistrate to proceed to hold

inquiry under Sec.202 Cr.P.C as the requisite satisfaction can be

entertained at the end of the inquiry under S.200 Cr. P.C itself. That

though Sec.202 as amended applies to prosecution under Sec. 138 of the

N.I. Act also in the light of Sec.4(2) of the Cr.P.C., and in the absence of

any specific contra provisions in Sec.138 of the N.I. Act. But that

ordinarily in a prosecution under Sec.138 of the N.I Act, if a proper

complaint is filed supported by necessary documents and a proper

affidavit, it may not be necessary for the Magistrate to proceed to hold

the inquiry under Sec.202 Cr.P.C as the requisite satisfaction can be

entertained at the end of the inquiry under Sec.200 Cr. P.C itself. But that

in a case where there is possibility of dispute regarding territorial

jurisdiction, or dispute regarding complicity alleged with the help of

Sec.141 of the N.I Act, it will be proper, necessary and advisable for the

Magistrate to hold enquiry under Sec.202 Cr.P.C. That even in such

inquiry under S.202 Cr.P.C in a prosecution under Sec.138 of the N.I Act,

it is not invariably necessary to examine a complainant and his witnesses

personally on oath and the complainant could be directed to file affidavit

or additional affidavit under Sec.145 of the N.l. Act on the specific

aspects where materials are found necessary or the Court entertains

doubts. That Sec.145 of the N.I Act shall apply to the stage of inquiry

under S.202 Cr.P.C also and courts must be specifically cognisant of the Crl.M.C.534/17 - : 29 :-

need for expedition in a prosecution under Sec.138 of the N.I. Act. It will

be profitable to refer to paras 17 and 31 of the abovesaid judgment of

this Court in H.D.F.C's case supra, which read as follows:

enquiry"17. It may be apposite in this context to consider when the under S.200 Cr. P.C would end and the enquiry under S.202 Cr. P.C would start. I am unable to locate any such Rubicon between the enquiry under S.200 Cr. P.C and the enquiry under S.202 Cr. P.C. Under S.202 Cr. P.C the Magistrate himself may conduct the enquiry. He may direct a police officer or any other person to conduct an investigation. Where he himself conducts the enquiry there is virtually no difference between the enquiry under S.200 and the enquiry under S.202 Cr. P.C. The learned Magistrate at the stage of S.202 Cr. P.C will only record the sworn statements of witnesses cited but not present at the stage of S.200 Cr. P.C. In a proceedings under S.138 of the N.I Act, there can ordinarily be no scope for investigation by a police officer or any other person. In a given case it is quite possible that the complainant may cite 'n' number of witnesses in addition to himself and produce all of them before the Magistrate in the enquiry under S.200 Cr. P.C. If the complainant and all those witnesses are examined at the stage of S.200 Cr. P.C and there is no need perceived for any investigation by a police officer, nothing more would remain to be enquired into at the stage of S.202 Cr. P.C. It would be idle, puerile, unnecessary and a sheer waste of time in such a case to proceed to any enquiry under S.202 Cr. P.C. The requisite satisfaction under S.203/204 Cr. P.C must be entertained or not, in such a case at the end of the enquiry under S.200 itself as nothing survives and it is unnecessary for the court in such a case to proceed to the enquiry under S.202 Cr. P.C. I take assistance from this example to decide whether notwithstanding the fact that mandatory language is used by the amendment, it is imperative that the court must proceed to such an enquiry under S.202 Cr. P.C in all cases. The enquiry under S.202 Cr. P.C in a case where no investigation is necessary, is not qualitatively different from the enquiry under S.200 Cr. P.C."

xxx xxx xxx

31. I may summarise my conclusions as follows:

i) Alert application of mind must be made by a criminal court at the

stage of S.203/204 Cr. P.C while taking cognizance and issuing process to satisfy itself that there is "sufficient ground for proceeding" against an accused person.

ii) This must be done by the Magistrate, cognizant of the twin requirements and challenge at the threshold - of giving a bona fide complainant a fuller and more exhaustive opportunity to substantiate his genuine grievance and of showing the door to a vexatious complainant trying to abuse the criminal adjudicatory process against a person who does not deserve to endure the unnecessary trauma.

Crl.M.C.534/17 - : 30 :-

iii) Ordinarily process can be issued under S.204 Cr. P.C at the end of the enquiry under S.200 - i.e. after recording the sworn statement of the complainant and his witnesses if any present if the requisite satisfaction that there is sufficient ground for proceeding can be entertained by the Magistrate on the materials available.

iv) If at the end of the enquiry under S.200 Cr. P.C the Magistrate is not able to come to a conclusion as to whether there is or there is no sufficient ground to proceed the Magistrate shall proceed to conduct an enquiry under S.202 Cr. P.C. Such enquiry may be conducted by the Magistrate himself or he may direct an investigation to be conducted by a police officer or any other person.

v) The criminal court at that stage must be alertly conscious of the greater trauma that a person who resides outside its jurisdiction will have to endure if process were issued by the court against him.

vi) The Magistrate, in the case of a person residing outside his jurisdiction, must ordinarily come to a conclusion as to whether there is sufficient ground to proceed against such accused only after conducting an enquiry under S.202 Cr. P.C.

vii) Notwithstanding the fact that requirement of (vi) is introduced by a specific amendment substituting the permissive "may" by the command of "shall", the non compliance does not vitiate the cognizance taken and the consequent issue of process as the purpose of such an enquiry under S.200 and 202 Cr. P.C is only to decide whether or not "there is sufficient ground for proceeding".

viii) S.202 Cr. P.C as amended applies to prosecutions under S.138 of the N.I Act also in the light of S.4(2) of the Code and in the absence of any specific contra provision in S.138 of the N.I Act.

ix) But ordinarily in a prosecution under S.138 of the N.I Act, if a proper complaint is filed supported by necessary documents and a proper affidavit is filed under S.145 of the N.I Act it may not be necessary for the Magistrate to proceed to hold the enquiry under S.202 Cr. P.C as the requisite satisfaction can be entertained at the end of the enquiry under S.200 Cr. P.C itself.

x) But in a case where there is possibility of dispute regarding territorial jurisdiction, or dispute regarding complicity alleged with the help of S.141 of the N.I Act, it will be proper, necessary and advisable for the Magistrate to hold enquiry under S.202 Cr.

P.C, if requisite satisfaction is not induced by the materials placed before it under clause (ix) above.

xi) Even in such enquiry under S.202 Cr. P.C in a prosecution under Crl.M.C.534/17 - : 31 :-

S.138 of the N.I Act, it is not invariably necessary to examine a complainant and his witnesses personally on oath. They can be directed to file affidavit or additional affidavit u/S.145 of the N.l. Act on the specific aspects where materials are found necessary or the Court entertains doubts. S.145 of the N.I Act as explained in the decision in Vasudevan v. State of Kerala (2005 (1) KLT 220) shall apply to the stage of enquiry under S.202 Cr. P.C also. Courts must be specifically cognisant of the need for expedition in a prosecution under S.138 of the N.I. Act.

xii) In a case where the requisite satisfaction under S.204 Cr. P.C. can be entertained convincingly by the materials available on record, the non compliance with S.202 Cr. P.C does not ipso facto vitiate the cognizance taken or the process issued. S.202 does not contemplate or mandate a ritualistic enquiry merely to satisfy the letter of the procedural/adjectival law even after the requisite satisfaction under S.203/204 Cr. P.C is convincingly entertained by the Court. In this sense the requirement introduced by amendment is only directory and not mandatory, though all courts are certainly expected to follow that stipulation."

19. A learned Single Judge (R.Basant, J.) of this Court in Usha

Sanghi v. George Jacob, reported in 2008 (4) KLT 649 has considered the

applicability of Sec.202 of the Cr.P.C. in the case involving offence under

Sec.138 of the N.I. Act, which was alleged on the basis of the corporate

vicarious liability envisaged in Sec.141 of the N.I. Act. This Court has

held in paras 10 and 11 thereof that the magistrate is obliged to conduct

Sec.202 inquiry, even in a prosecution under Sec.138 N.I. Act, though the

mere non-compliance with that stipulation may not vitiate cognizance

taken by such magistrate. That though failure/omission to conduct an

enquiry under S.202 Cr.P.C in a prosecution under S.138 of the N.I.Act

will not ipso facto vitiate the cognizance so taken, it is necessary in a

case where accused persons are sought to be saddled with liability under

S.141 of the N.I.Act to conduct such an enquiry. It was held in para 14 Crl.M.C.534/17 - : 32 :-

thereof that after amendment to Sec.202 Cr.P.C., insofar as the accused

was residing outside the jurisdiction of the magistrate concerned, not

only the averments in the complaint but also materials collected at the

inquiry under Sec.200 and Sec.202 must be available to persuade the

magistrate to take the view that there are sufficient grounds to issue

process against the accused under Sec.204 of the Cr.P.C. That the

purpose of amendment to Sec.202 Cr.P.C. is to rule out the possibility of

undeserved vexation for persons residing outside the jurisdiction of the

magistrate inflicted on them by a complainant by unjustified resort to

criminal adjudicatory process, etc. It was also held in para 3 thereof that

in a complaint which alleges vicarious liability under Sec.141 specific

assertions must be made to attract the play of Sec.141 of the Negotiable

Instruments Act and it has been averred in the complaint that the accused

persons concerned are in charge and responsible for the affairs of the

business of the company and that once the allegation is specifically

raised, it is for the complainant to adduce evidence in support of the said

assertion later and it has to be effectively conveyed as a matter of fact

that the accused persons were in charge of and responsible to the

company for the conduct of its affairs on the date of the offence and if

such averments are made, it can be attempted to be supported later at

the stage of inquiry under Sec. 200/202 of the Cr.P.C. or at the later

stage of the trial.

Crl.M.C.534/17 - : 33 :-

20. Paras 3, 10 and 11 of the abovesaid ruling of this Court in

Usha Sanghi v. George Jacob, reported in 2008 (4) KLT 649, read as

follows:

"3. To the vital facts first. The complainant alleged that the 1st accused, a company, had issued the cheques involved in these cases to him for the due discharge of a legally enforcible debt/liability. There is no contention that either of the petitioners had signed the cheques in question. It is alleged that they were directors of the company. There are averments which suggest that they have roles to play in the management and affairs of the company. All the complaints were filed along with affidavits under S.145 Cr. P.C. in lieu of sworn statement under S.200 Cr.P.C. No enquiry under S.202 Cr.P.C was conducted by the Magistrates in all these cases. Cognizance was taken and process was issued against all the 6 accused persons including the petitioners herein who are accused 3 and 4 in all the prosecutions.

xxx xxx xxx

enquiry10. Coming to question No.2, argument is advanced that no under S.202 Cr.P.C has been conducted by the learned Magistrate though cognizance was taken after 23.6.2006, the date on which the amended S.202 Cr.P.C. came into effect. After the amendment, Magistrates are obliged, in a case where the accused resides at a place beyond the area in which the Magistrate exercises his jurisdiction, to conduct an enquiry under S.202 Cr.P.C. Admittedly, such an enquiry has not been conducted. Whether the Magistrate is bound ritualistically to conduct such an enquiry in every case did come up for consideration before this court and this court in H.D.F.C v. Jaleel (2008 (3) KLT 869) has come to the specific conclusion that the Magistrate is obliged to conduct such an enquiry, even in a prosecution under S.138 of the Negotiable Instruments Act, though the mere non-compliance with that stipulation may not vitiate cognizance taken by such Magistrate. A contention was raised in that case that the amended S.202 Cr.P.C cannot have any application to prosecutions under S.138 of the Negotiable Instruments Act. After detailed consideration, the question was answered vide clauses viii, ix, x and xi of para 31 which I extract below: ..............

xxx xxx xxx

11. It therefore is evident that though failure/omission to conduct an enquiry under S.202 Cr.P.C in a prosecution under S.138 of the N.I.Act will not ipso facto vitiate the cognizance taken, it is necessary in a case where accused persons are sought to be saddled with liability under S.141 of the N.I.Act to conduct such an enquiry. In the facts and circumstances of this case, I have no hesitation to agree that the learned Magistrates must necessarily have conducted an enquiry under S.202 Cr.P.C to ascertain whether materials are there to justify the allegation that the accused persons, including the petitioners herein, were in charge of and responsible to the company for the conduct of its affairs.

Crl.M.C.534/17 - : 34 :-

On that aspect, in respect of the accused persons who are residing at Hyderabad, the pointed attention of the court must have been riveted imbibing the motivations and persuasions that prompted the legislature to bring in the amendment to S.202 Cr.P.C. That has not been done by the learned Magistrate and that inadequacy, according to me, justifies the challenge raised by the petitioners."

21. As noted herein above, the Apex Court in the judgment in

K.S.Joseph v. Philips Carbon Black Ltd. reported in (2016) 11 SCC 105 =

2016 (2) KLT 542(SC) has left open the question of law as to the

applicability of Sec. 202 of the Cr.P.C. to offences under Sec. 138 of the

N.I. Act.

22. Various High Courts have taken the views which are in

variance with those rendered by the learned Single Judge of this Court in

H.D.F.C's case supra and Usha Sanghi's case supra. While determining

the issue in this case, this Court is bound by the ratio decidendi laid

down by a learned Single Judge of this Court in H.D.F.C's case supra

reported in 2008 (3) KLT 869 and Usha Sanghi's case supra reported in

2008(4) KLT 649.

23. The petitioner's counsel has not been able to show before

this Court that the ratio decidendi laid down by learned Single Judge in

those cases has in any manner been altered either by a Division Bench or

by a Larger Bench rulings of this Court or by the Apex Court. Apart from

this, this Court is fully in respectful concurrence with the considered view

rendered by the learned Single Judge in H.D.F.C's case supra reported in

2008 (3) KLT 869 and Usha Sanghi's case supra reported in 2008(4) KLT Crl.M.C.534/17 - : 35 :-

649. This Court would venture to hold that the considered view so taken

by the learned Single Judge of this Court in H.D.F.C's case supra and

Usha Sanghi's case supra, have taken into consideration various subtle

and multifarious aspects of the cases, not only from the legalistic angle

but also from the dimension of praxis and the said view clearly reflects a

golden "middle ground" instead of taking a position of either of

extremes. Therefore, the upshot of above discussion is that though Sec.

202 of the Cr.P.C. is applicable even for prosecution under Sec.138 of the

N.I. Act, but ordinarily there may not be much of a substantial difference

in the Sec.200 inquiry and Sec. 202 inquiry and further that mere action

of the learned Magistrate in taking cognizance in such a case without Sec.

202 inquiry will not by itself vitiate the cognizance taken by the

magistrate. Further it would be appropriate and even necessary in cases

under Sec. 138 offences, wherein the corporate vicarious liability under

Sec. 141 of the Negotiable Instruments Act is sought to be drawn. That is

in cases where the drawer of a cheque is a body corporate like

company/partnership firm, etc. as envisaged in Sec.141 of the N.I. Act

and apart from the drawer of the cheque, who is the principal offender,

other directors/partners of the company/partnership firm are also

implicated as co-accused on the purported ground that they were in

charge and responsible for the affairs of the business of the company/

partnership firm, etc. then it would be appropriate for the learned Crl.M.C.534/17 - : 36 :-

Magistrate to have conducted Sec.202 inquiry.

24. In the judgment dated 1.8.2014 rendered by the Apex Court

in Dashrath Rupsingh Rathod v. State of Maharashtra & Anr. (2014) 9

SCC 129 it was held that the commission of offence under Sec.138 is by

the dishonour of the cheque, that the other conditions in proviso to Sec.

138 regarding the validity period of the cheque, issuance of statutory

demand notice, etc. should also be complied with in order to make the

said offence prosecutable as a valid complaint, etc. Accordingly it was

held by the Apex Court in Dashrath Rupsingh's supra that a complainant

is statutorily bound to comply with Sec.177 of the Cr.P.C. and therefore

the place of situs where Sec.138 complaint is to be filed is not of his

choosing and the territorial jurisdiction is restricted only to the court

within whose local jurisdiction the offence was committed, which in the

context is where the cheque is dishonoured by the bank on which it is

drawn. In this context it is relevant to note that sub section (2) of Sec.

142 and Sec.142A have been newly inserted to the N.I. Act as per the

amended provisions made effective from 15.6.2015. Sub section (2) of

Sec.142 and sub section (1) Sec. 142A provide as follows:

Sec.142(2):

"The offence under S.138 shall be inquired into and tried only by a Court within whose local jurisdiction:--

(a) If the cheque is delivered for collection through an account, the branch of the Bank where the payee or holder in due course, as the case may be, maintains the account, is situated:

or Crl.M.C.534/17 - : 37 :-

(b) If the cheque is presented for payment by the payee or holder in due course otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.

Explanation.-- For the purposes of Clause (a), where a cheque is delivered for collection at any branch of the Bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the Bank in which the payee or holder in due course, as the case may be, maintains the account.

Sub section (1) of Sec. 142A:

Sec.142A.-- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or any judgment, decree, order or directions of any Court, all cases arising out of S.138 which were pending in any Court, whether filed before it, or transferred to it, before the commencement of the Negotiable Instruments (Amendment) Ordinance, 2015 shall be transferred to the Court having jurisdiction under sub-section (2) of S.142 as if that sub-section had been in force at all material times.

xxx xxx xxx"

25. After considering the abovesaid provisions, their Lordships

of the Supreme Court have held in para 13 of that the judgment in

Bridge Stone India (P) Ltd. v. Inderpal Singh, reported in (2016) 2 SCC

75, that the amended Sec.142(2) leaves no room for any doubt, especially

in view of the Explanation thereunder that with reference to an offence

under Sec.138 of the Negotiable Instruments Act, the place where the

cheque is delivered for collection, that is the branch of the bank, of the

payee or the holder in due course, where he maintains an account, would

be determinative of the place of territorial jurisdiction, etc. In vast

majority of the cases the cheque would have sent by the payee for

collection through his bank and so the situs of the branch of the bank of Crl.M.C.534/17 - : 38 :-

the payee or the holder in due course to whom he sends the cheque for

collection would be determinative of the place of territorial jurisdiction. It

is only in exceptional cases where the payee or holder in due course

presents the cheque for payment, otherwise through an account, that the

branch of the drawee bank, where the drawer accused maintains the

account, is situated becomes the determinative place of territorial

jurisdiction, as contemplated in clause (b) of sub section (2) of Sec. 142.

So in actual practice in vast majority of cases, in complaints alleging

offence under Sec.138 of the Negotiable Instruments Act, the accused

persons may be residing outside the territorial jurisdictional limits of the

magistrate having jurisdiction over the collection bank. If in all such

cases, if it is held that the decision of the learned Magistrate to take

cognizance even after due conduct of Sec. 200 preliminary inquiry, would

be rendered illegal, merely because he has not conducted Sec. 202

inquiry, it would be taking a mechanistic and tunnel visioned view, which

would result in stultifying the very object of expeditious commencement

and completion of such cases and merely because Sec. 202 inquiry is not

conducted, will not necessarily vitiate the decision of the learned

Magistrate in having taken cognizance on the basis of Sec. 200 inquiry.

As held by this Court in H.D.F.C's case supra and Usha Sanghi's case

supra, in actual practice, there may not be much difference between Sec.

200 inquiry and Sec.202 inquiry. This crucial aspect of the matter has Crl.M.C.534/17 - : 39 :-

also been substantially and effectively acknowledged by the Supreme

Court in para 14 of the aforecited Vijay Dhanuka & Ors. v. Najima

Mamtaj & Ors. reported in (2014) 14 SCC 638, which in turn has been

relied and reiterated by the Apex Court in para 24 of the decision in

Abhijit Pawar v. Hemant Madhukar Nimbalkar & Anr. reported in 2017

KHC 6029 = 2017 (1) KLD 159 = 2016 (12) SCALE 788. It has been so

held by the Apex Court even in cases which were involving offences

under the I.P.C. Therefore, the said view taken by the learned Single

Judge of this Court in HDFC's case and Usha Sanghi's case supra, has

thus stood approved by the Apex Court in the abovesaid rulings. It will be

mainly in cases involving issues of vicarious liability as envisaged in Sec.

141 of the Negotiable Instruments Act in cases where the drawer of

dishonoured is a body corporate like a company that appropriateness and

relevance of Sec.202 inquiry process would become acute and necessary.

Otherwise there cannot be any strait jacket formula to decide as to which

are the categories of cases wherein such Sec. 202 inquiry process would

be appropriate and relevant. But in vast majority of Sec. 138 matters, one

may not be able to locate any Rubicon between Sec. 200 inquiry and Sec.

202 inquiry. The core and crux of the matter is as to whether the learned

Magistrate had necessary and proper materials in order to enable him to

decide whether further steps in the complaint could be proceeded with,

for the issuance of process of the summons to the accused. That is the Crl.M.C.534/17 - : 40 :-

heart of the matter which is to be examined and therefore hyper

technical and mechanistic contentions based on the mere non conduct of

Sec. 202 inquiry, are not really apt and relevant and as held by this Court,

mere non conduct of Sec.202 inquiry by itself will not result in vitiating

the decision taken by the magistrate on issue of process. When the

matter is appropriately challenged before this Court in Sec.482

proceedings in a given case, it is for the Court to examine carefully and

meticulously as to whether the non conduct of Sec.202 inquiry has

resulted in a situation whereby the magistrate has proceeded to issue

the process without having necessary and proper materials for such

decision making process. So in the given facts and circumstances of a

case, if this Court is satisfied on such crucial and relevant aspects, then

certainly the plea could be examined and if found necessary and

appropriate to advance in the interest of justice, then certainly

appropriate directions could be issued by virtue of the enabling powers

under Sec. 482 of the Cr.P.C.

26. Now coming to the facts of this case, the petitioner has not

raised any contention that the vicarious liability alleged against him as a

director of the company is legally untenable or that it would go against

the clear mandate of Sec. 141 of the N.I. Act, etc. The petitioner has not

disputed the fact that he is a director of the company, but no contentions

are raised in this petition as regards the applicability or otherwise of the Crl.M.C.534/17 - : 41 :-

vicarious liability envisaged in Sec.141 of the N.I. Act. On the other hand,

the only contention raised by the petitioner is that accused No.1

(company) has given standing instructions to their bank that any cheque

of the company can be passed only if it is signed by both the authorised

signatories, viz., accused 2 and 3. In other words, the petitioner would

point out that even as per the case projected in the impugned Anx.A

complaint, only A-2 alone has signed in the cheque as an authorised

signatory and that therefore the cheque was not valid and hence even if

there was sufficient account in the balance of the company's account, the

cheque could not have been passed by the bank as the cheque has been

executed only by A-2 who is one of the signatories and as it has not been

issued and signed by the petitioner (A-3) who is the other authorised

signatory. It may not be relevant or proper to consider such a contention

by the learned Magistrate even if a Sec. 202 inquiry was held in this case,

as it does not pertain to a dispute regarding the vicarious liability of co-

accused directors of the company in terms of Sec. 141 of the N.I. Act.

Therefore, it is absolutely not necessary for this Court at this stage to

consider whether such a legal contention raised by the petitioner is

tenable and sustainable so as to affect the prosecution under Sec. 138 of

the N.I. Act. If the petitioner is of the considered view that such a

contention as now raised by him is tenable and sound, it is for him to

raise such an objection or defence at the appropriate stage during the Crl.M.C.534/17 - : 42 :-

adjudication of the case in the trial of this case. This Court would refrain

from commenting about the tenability and soundness of such a

contention in these proceedings except to say that it may not have been

relevant and proper for the learned Magistrate to have examined such an

issue even if a Sec.202 inquiry is conducted in this case. Therefore, the

abovesaid contentions raised by the petitioner based on the non-

conduct of Sec. 200 inquiry in this case, is not an aspect which would

vitiate the decision making process in the matter of taking cognizance in

this case. The petitioner has not raised any contention in this petition

that the learned Magistrate has not even conducted Sec. 200 preliminary

inquiry before taking the impugned decision to take cognizance of the offence

in this case. Therefore, this Court would proceed only on the premise as if the

learned Magistrate has taken cognizance in this case, after conducting a

preliminary inquiry at the Sec. 200 stage. It is for the petitioner to lead

necessary factual evidence in regard to the foundation of his various

objections and it is for the trial court to consider all aspects of the matter

including the said contention raised by the petitioner regarding the

validity of the cheque during the adjudication of the matter in the trial of

this case.

StandsWith these observations and directions, the aforecaptioned Crl.M.C. dismissed.

Sd/-

sdk+ ALEXANDER THOMAS, JUDGE ///True Copy/// P.S. to Judge Crl.M.C.534/17 - : 43 :-