TaxTMI 
TaxTMI 
TaxTMI 
2014 (8) TMI 1213
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....earned J.M.F.C., Pipli, in I.C.C. No. 37 of 2012, taking cognizance of offence under Section 138 of the Negotiable Instruments Act ('N.I. Act' for short) and directing issuance of process against the accused-petitioner. 3. The sole contention raised by learned counsel for the accused-petitioner is that as the petitioner resides at Bhubaneswar, which is beyond the territorial jurisdiction of the learned J.M.F.C., Pipli, enquiry under Section 202 Cr.P.C. was mandatory and the same having not been complied, the impugned order of cognizance is liable to be quashed. It is submitted that as the provisions of Section 202(1) Cr.P.C. are mandatory and admittedly, as no enquiry has been conducted by the learned Magistrate prior to taking of ....
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....r consideration in this case is whether in a proceeding under Section 138 N.I. Act, where the accused resides beyond the territorial jurisdiction of the concerned Magistrate, it is mandatory for the Magistrate to conduct an enquiry, as envisaged under Section 202(1) Cr.P.C., before issuing process to the accused. 6. The object of the provisions of Section 202 Cr.P.C. is to enable the learned Magistrate to form an opinion as to whether process should be issued or not. At that stage, what the Magistrate has to see is whether there is evidence in support of the allegations made in the complaint and a prima facie case has been made out on the materials placed before him. The scope of enquiry under Section 202(1) Cr.P.C., as amended with effect....
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....ng contemplated under Section 200 Cr.P.C. can be dispensed with in the light of Section 145 of the N.I. Act, which was introduced by way of amendment in the year 2000, has observed as under: "22. From a conjoint reading of Sections 138, 142 and 145 of the N.I. Act as well as Section 200 of the Code, it is clear that it is open to the Magistrate to issue process on the basis of the contents of the complaint, documents in support thereof and the affidavit submitted by the complainant in support of the complaint. Once the complainant files an affidavit in support of the complaint before issuance of the process under Section 200 of the Code, it is thereafter open to the Magistrate, if he thinks fit, to call upon the complainant to remain pres....
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....ct, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the N.I. Act and the magistrate is neither mandatory obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the N.I. Act." 9. A Division Bench of this Court in a reference made to it by the learned Single Judge in CRLMC Nos. 42 and 1 of 2009, on the question whether it is necessary to record the statement of the complainant before issuance of process in a proceeding under Section 138 N.I. Act, has answered the refe....
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....rt under Section 263(h) CrPC and the same procedure can be followed by a Magistrate for offence of dishonour of cheque since offence under Section 138 of the Act is a document based offence. We make it clear that if provisos (a), (b) & (c) to Section 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." 11. Considering the decisions of various High Courts of the country, which have laid down certain procedure for speedy disposal of the cases under Section 138 N.I. Act, the Hon'ble Court found that many of the directions given by the various High Courts are wort....