2013 (8) TMI 1079 - HC - Indian Laws

Procedural Error Invalidates Process Order in NI Act Case: Court Remands for Reconsideration

The judgment by T.V. Nalawade, J. addressed the challenge to the order of issue process made by the J.M.F.C. in S.C.C. No. 4177/12. The Court concluded ... - Issues involved: Challenge to order of issue process u/s 138 of Negotiable Instruments Act by Judicial Magistrate, First Class (J.M.F.C.) for not following procedure u/s 202 of Criminal Procedure Code (Cr.P.C.) as amended in 2006.Summary:The judgment by T.V. Nalawade, J. addressed the challenge to the order of issue process made by the J.M.F.C. in S.C.C. No. 4177/12. The petitioner contended that the J.M.F.C. did not conduct the required inquiry as per the amended provision of section 202 of Cr.P.C., citing the mandatory nature of this provision based on legal precedents. The Court noted that various decisions have held the amended provision of section 202 as mandatory, emphasizing the need for the Magistrate to follow the prescribed procedure to ascertain the truth in the allegations and establish a prima facie case. The scope of inquiry u/s 202 of Cr.P.C. is limited, with certain presumptions under the Negotiable Instruments Act and General Clauses Act to be considered. The judgment concluded that the order of issue process by the J.M.F.C. without following the mandated procedure cannot be sustained, and the matter was remanded back to the J.M.F.C. for reconsideration within two months, emphasizing adherence to the procedure u/s 202 of Cr.P.C. as amended in 2006.In essence, the judgment highlighted the importance of following the prescribed procedure u/s 202 of Cr.P.C. for issue process in cases involving offenses like those u/s 138 of the Negotiable Instruments Act, underscoring the limited scope of inquiry and the need to establish a prima facie case based on relevant legal provisions and presumptions.