TaxTMI 
TaxTMI 
2024 (9) TMI 917
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....d the prayer of the petitioner for conducting an enquiry under Section 202 of the CrPC and fixed a date for cross-examination of P.W. 1. 3. The sum and substance of the case is that the OP No. 2 being the Director of the Company, namely, West Bengal Essential Commodities Supplies Corporation Limited has filed a petition of complaint under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 (in short 'NI Act') to the Court of Learned Metropolitan Magistrate, 16th Court at Calcutta against the petitioner herein. 3a. The complainant has alleged, inter alia, that the petitioner no. 1 being the Director of M/s. Gems Refineries (1997) Private Limited having its office at 14, P.N. Banerjee Road, P.O. and P.S. - Budge Budge, District - South 24 Parganas, Pin Code No. 743319 has issued 22 cheques of different amounts on the different dates aggregating to a sum of Rs. 5,17,00,000/- only in favour of the complainant to discharge its existing liabilities which was accrued out of business transaction between the accused and the complainant. 3b. Those cheques were presented on 9th and 12th September, 2005 with the Central Bank of India, New Market Branch having its....
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....follows: - "11. Section 145 of the NI Act provides that evidence of the complainant may be given by him on affidavit, which shall be read in evidence in an inquiry, trial or other proceeding notwithstanding anything contained in the CrPC. The Constitution Bench held that Section 145 has been inserted in the Act, with effect from 2003 with the laudable object of speeding up trials in complaints filed under Section 138. Hence, the Court noted that if the evidence of the complainant may be given by him on affidavit, there is no reason for insisting on the evidence of the witnesses to be taken on oath. Consequently, it was held that Section 202(2) CrPC is inapplicable to complaints under Section 138 in respect of the examination of witnesses on oath. The Court held that the evidence of witnesses on behalf of the complainant shall be permitted on affidavit. If the Magistrate holds an inquiry himself, it is not compulsory that he should examine witnesses and in suitable cases the Magistrate can examine documents to be satisfied that there are sufficient grounds for proceeding under Section 202. The same view has been reflected in Sunil Todi & another's case passed on 03.12.2021 ....
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....s against the accused. As such, the petitioner/accused filed an application before the Learned Trial Magistrate praying for enquiry under Section 202 of the CrPC which is mandatory in nature but despite the said facts, the Learned Trial Magistrate failed to cure such illegality for salvation of justice. It is also incumbent duty of the Learned Magistrate to rectify such error when the application has been filed by the petitioner but the same was rejected. Not only that, the Learned Magistrate failed to rectify such error even indicated by the petitioner. The Learned Chief Judge also failed to consider the observation of the Hon'ble Apex Court passed in a case K.S. Joseph Vs. Philips Carbon Block Limited reported in (2017) 1 SCC (Cri) 270 wherein the Hon'ble Apex Court held that "Postponement of issue of process by Magistrate - Purpose of - Held, is to avoid unnecessary harassment to proposed accused - Complaint regarding dishonour of cheque under S. 138, NI Act - Plea of appellant-accused, that he being resident of area outside territorial jurisdiction of Magistrate who issued summons, an enquiry within meaning of S. 202 CrPC was mandatory, and since that was not done, order of cog....
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....llar and Others (2011) 14 SCC 770; reported in and 2. Odi Jerang v. Nabajyoti Baruah & Ors. (Special Leave to Appeal (Crl) no(s). 2135/2022). 5. Per contra, the learned counsel appearing on behalf of the opposite parties vociferously opposed the submission made by the learned counsel appearing on behalf of the petitioner and further argued that the judgments referred by the learned counsel for the petitioner are not at all applicable in the present facts and circumstances of the case. In the present case, complainant is a Public Servant and had filed complaint under Section 138 read with Section 142 of the N.I. Act, 1881 and in those cases, Sections 200 and 202 of the CrPC are not even applicable, when complaint filed by the Public Servant with an affidavit pursuant to Section 145 of the N.I. Act, 1881. It is true that Section 202 of the CrPC was amended for conducting an enquiry before issuing of process which came into effect from 23.06.2006 but such enquiry is not at all applicable if requisite satisfaction can be obtained by the Learned Magistrate from the materials available on the record. Rather, the judgment in Re: expeditious trial of cases under Section 138 of ....
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....amination 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: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them. Section 201-Procedure by Magistrate not competent to take cognizance of the case. -If the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall, (a) if the complaint is in writing, return it for presentation to the proper Court with an....
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....n 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. Section 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....
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....onducted by the Magistrate or court is an inquiry under Section 200, Cr.P.C. Examination of complaint only is necessary with the option of examining the witness present, if any, under the inquiry under Section 202, Cr.P.C., the witnesses are examined for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused. 63. In Chandra Deo Singh Vs. P. C. Bose reported in AIR 1963 SC 1430 a four Judges Bench of the Hon'ble Supreme Court considered Section 202 of the old Criminal Procedure and held as under: - 8. . . . the object of the provisions of Section 202 (corresponding to present Section 202 of the Code), was to enable the Magistrate to form an opinion as to whether process should be issued or not and to remove from his mind any hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath. 64. The Hon'ble Supreme Court while considering the objects underlined the provisions of Section 202 Cr.P.C. in Manharibhai Muljibhai Kakadia & Anr. (2012 AIR SCW 5314, para 23) (supra) and made the following observations: - "20. Section 2....
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....o proceed further. The scope of enquiry under Section 202, CrPC is, therefore, limited to the ascertainment of truth or 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 defense that the accused may have. 66. In Vijay Dhanuka (2014 AIR SCW 2095, paras 13 and 14) (supra), it has been held that under Section 200, Cr. P.C, examination of complainant only is necessary with the option of examining the witnesses present, if any, whereas in enquiry under Section 202 Cr. P.C., the witnesses are examined for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused. The relevant portion of the above decision is set out below: 17. 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 mandat....
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....vident 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. 68. Therefore, keeping in mind the object sought to be achieved by way of amendment of sub-section (1) of Section 202, Cr.P.C., the nature of enquiry as indicated in Section 19 of the Criminal Procedure (Amendment) Act, 2005, the Magistrate concerned is to ward of false complaints against such persons who reside at far of places with a....
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....s triable exclusively by the Court of Session; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant." 32. Under Sub-Section (1) of Section 202, a Magistrate upon the receipt of a complaint of an offence of which he/she is authorized to take cognizance is empowered to postpone the issuance of process against the accused and either (i) enquire into the case; or (ii) direct an investigation to be made by a police officer or by such other person as he thinks fi....
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....2095], this Court dwelt on the purpose of the amendment to Section 202, observing: "11. Section 202 of the Code, inter alia, contemplates postponement of the issue of the process 'in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction' and thereafter to either inquire into the case by himself or direct an investigation to be made by a police officer or by such other person as he thinks fit. In the face of it, what needs our determination is as to whether in a case where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, inquiry is mandatory or not. 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 ....
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....f taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Ltd. v. Judicial Magistrate [Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749: 1998 SCC (Cri) 1400] to set in motion the process of criminal law against a person is a serious matter." *** "22. The steps taken by the Magistrate under Section 190(1)(a) CrPC followed by Section 204 CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, ma....
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....ality, the Court relied on the decision in Vijay Dhanuka which had held that the 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 enquiry envisaged under Section 202 of the Code. 36. In Birla Corporation Ltd. v. Adventz Investments and Holdings [(2019) 16 SCC 610: AIR 2019 SC 2390], the earlier decisions which have been referred to above were cited in the course of the judgment. The Court noted: "26. The scope of enquiry under this section is extremely restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether process should be issued or not under Section 204 CrPC or whether the complaint should be dismissed by resorting to Section 203 CrPC on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any. At the stage of enquiry under Section 202 CrPC, the Magistrate is only concerned with the allegations made in the complaint or the evidence in support of the averments in the complaint to satisfy himself that there is suf....
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....rocess are made out. The amendment to Section 202 of the Code with effect from 23.06.2006, vide Act 25 of 2005, made it mandatory for the Magistrate to conduct an inquiry before issue of process, in a case where the accused resides beyond the area of jurisdiction of the court. (See: Vijay Dhanuka & Ors. v. Najima Mamtaj & Ors. 1, Abhijit Pawar v. Hemant Madhukar Nimbalkar and Anr. and Birla Corporation Limited v. Adventz Investments and Holdings Limited & Ors.). There has been a divergence of opinion amongst the High Court's relating to the applicability of Section 202 in respect of complaints filed under Section 138 of the Act. Certain cases under Section 138 have been decided by the High Court's upholding the view that it is mandatory for the Magistrate to conduct an inquiry, as provided in Section 202 of the Code, before issuance of process in complaints filed under Section 138. Contrary views have been expressed in some other cases. It has been held that merely because the accused is residing outside the jurisdiction of the court, it is not necessary for the Magistrate to postpone the issuance of process in each and every case. Further, it has also been held that not conducting....
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....ld to be invalid as betraying a non-application of mind. In Dy. Chief Controller of Imports & Exports v. Roshanlal Agarwal [(2003) 4 SCC 139: AIR 2003 SC 1900], this Court has held that in determining the question as to whether process is to be issued, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can only be determined at the trial. [See also in this context the decision in Bhushan Kumar v. State (NCT of Delhi) (2012) 5 SCC 424: AIR 2012 SC 1747]." 10. Over all consideration of the arguments made by the parties and judgments referred above by the parties and upon perusal of all orders passed by the Learned Metropolitan Magistrate, this Court finds that the Learned Chief Metropolitan Magistrate has carefully perused the complaint supported by an affidavit and documents, taken cognizance and further transferred the case to Learned Metropolitan Magistrate, 16th Court for enquiry and disposal under Section 192 (1) CrPC. 11. On 13.03.2006, the complainant was examined by the Learned Metropolitan Magistrate under ....