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2011 DIGILAW 3186 (MAD)

Govinder R. Chordia v. Shanti Lal. P.

2011-07-07

T.SUDANTHIRAM

body2011
JUDGMENT :- 1. This petitioner has been filed to quash the proceedings in C.C.No.4980 of 2010, pending on the file of the Court of VII Metropolitan Magistrate, George Town, Chennai. 2. The learned counsel for the petitioner submitted that the accused in this case is a resident of Bangalore and the complaint is filed against him in Chennai and as such, the learned Magistrate ought to have followed the mandatory procedure contemplated under Section 202 Cr.P.C. As per the amended provision under Section 202 Cr.P.C., the learned Magistrate ought to have enquired the case himself or directed an investigation to be made by a police officer or by such person as he think fit for the purpose of deciding whether or not there is sufficient ground for proceeding against the company. The learned Magistrate by failing to postpone the issue of process and by not holding any enquiry has violated the provision under Section 202 Cr.P.C. 3. The learned counsel for the petitioner himself after putforthing this argument drew the attention of this Court fairly to the decision of the Calcutta High Court made in C.R.R.No.348 of 2007 dated 04.02.2009, wherein it is held that an application under Section 202 Cr.P.C., is discretionary and the same will come into operation only in cases where the learned Magistrate in his discretion decides to postpone the issue of process. The learned counsel further submitted that challenging the said order of the Honourable High Court of Calcutta, a petition has been preferred before the Honourable Supreme Court in Special Leave Petition to Appeal (Crime) No.4432 of 2009. 4. The learned counsel for the petitioner raised one more issue by submitting that cheque was represented for the second time without giving any notice to the petitioner which is impermissible under Negotiable Instruments Act. 5. This Court considered the submissions made by the petitioner and perused the records. Section 202(i) Cr.P.C., reads as follows: “202. Postponement of issue of process. The learned counsel for the petitioner raised one more issue by submitting that cheque was represented for the second time without giving any notice to the petitioner which is impermissible under Negotiable Instruments Act. 5. This Court considered the submissions made by the petitioner and perused the records. Section 202(i) Cr.P.C., reads as follows: “202. Postponement of issue of process. (1) Any Magistrate, on receipt of a complaint of an offence which he is authorized 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 its 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)…. (3)…. 6. Though the plain reading of Section 202(1) Cr.P.C., shows that if the accused residing at a place beyond the area in which the learned Magistrate exercise his jurisdiction shall postpone the issue of process against the accused and then to enquire the case himself or direct an investigation to be made in order to try whether or not there is sufficient ground for proceeding in this case, the offence being under Section 138 of Negotiable Instruments Act, it is certain that the Magistrate cannot send the case for investigation and it should be treated only as private complaint. The learned Magistrate recorded the sworn statement of the complainant and thereafter only taken cognizance of the offence. While so, the issue arises whether the cognizance taken by the learned Magistrate without enquiring the complaint is illegal. 7. The learned Magistrate recorded the sworn statement of the complainant and thereafter only taken cognizance of the offence. While so, the issue arises whether the cognizance taken by the learned Magistrate without enquiring the complaint is illegal. 7. The Honourable Calcutta High Court observed in the order made in C.R.R.No.348 of 2007 as follows: “The intention of the legislature is to accord some protection to the persons who are residing at far of places whereby he is dragged into criminal cases in order to harass. While interpreting the provision of Section 202, the object which was taken into consideration by the legislature may not be overlooked. No doubt it casts an obligation on the part of the Magistrate to conduct necessary inquiry in cases where he finds that all or any of the accused persons residing outside the jurisdiction of the Court. The question now arises whether the amendment by itself makes it obligatory on the part of the Magistrate to enter into the field of Section 202, even if, he is satisfied after examination of complainant and his witnesses in terms of provision under Section 200 of the Code that a prima facie case is made out against the accused persons. It may be pointed out that subjective satisfaction on the part of the learned Magistrate about prima facie case to call upon the accused persons to face trial. At this stage the Magistrate is not required, to examine, whether evidence is sufficient to convict the accused. Careful perusal of the language appearing under Section 200 vis-à-vis Section 203 of the Code makes it abundantly clear that the Magistrate is empowered to dismiss a complaint after considering the statement of oath (if any) of the complainant and the witnesses recorded under Section 200 of the Code. This Power of Magistrate, in my view, is not controlled by the language of Section 202 of the Code as originally framed or even under the amended provision of Section 202. Comparative study of Section 200 read with Section 202 of the Code makes it abundantly clear that Section 202 comes into operation only in cases where there is “postponement of issue of process”. Comparative study of Section 200 read with Section 202 of the Code makes it abundantly clear that Section 202 comes into operation only in cases where there is “postponement of issue of process”. Such postponement of issue of process would be necessary only in cases where the learned Magistrate even after recording the evidence of complainant and his witnesses, is not sure whether to issue process in terms of Section 204 of the Code or to dismiss the complaint under Section 203 of the Code. In other words when the materials placed before the Magistrate under Section 200 is according to the view of learned magistrate is not complete in order to take action either to dismiss the complaint under Section 203 of to issue process under Section 204, then and then only, he may enter into the field of Section 202 and cause such further inquiry as it necessary in order to decide the issue on the complaint which is presented before him for necessary consideration in terms of Chapter XV of the Code. In cases where the issue of process was not postponed, that the Magistrate after taking evidence in terms of Section 200 of the Code is satisfied to dismiss the complaint then the law never mandates of makes it obligatory upon him to enter into the provision under Section 22 of the Code. It is not clear to me as to why the Magistrate must be held to be compelled to cause further inquiry in terms of Section 202, if he is satisfied after taking evidence under Section 200 that a prima facie case is made out against the accused persons who are residing outside his jurisdiction and to issue process against them in terms of Section 204 of the Code. The language of Section 202 as amended cannot be stretched or extended to such a degree which in its turn may defeat the very purpose for which Chapter XV of the Code is incorporated. There is nothing to show in the language of Section 202 of the Code, as originally framed, or even after amendment, that the same over rides the provision of Section 200 of the Code and the Magistrate, in view of amended provision of Section 202, is compelled to postpone issue of process under Section 204 or to dismiss the complaint under Section 203 of the Code. In other words the language of amended provision of Section 202 cannot be read in such a way separating it altogether from the language of Section 200 and Section 203. There is nothing in Section 202 or in the amended provision which controls the language of Section 200 of the Code. The amendment was effected and applies only in cases where the issuance of process against the accused persons are postponed by the learned Magistrate. It may be pointed out that postponement of issue of process by the Magistrate is not mandatory or obligatory. The language of Section 202 as originally framed used the word, ‘may’, if he thinks fit. This language of Section 202 clearly indicates that Magistrate has discretion to enter into the field of Section 202 and there is no compulsion on the part of the Magistrate that he must enter into the field of Section 202 after recording the evidence under Section 200 of the Code. Needless to add if the learned Magistrate enters into the field of Section 202 then and then only he must conduct the necessary inquiry in case of accused who are residing outside the jurisdiction of the Code. The language of the original Section using the word ‘may’ is not changed by the subsequent amendment effected under Act 25 of 2005. The discretion to enter within the purview of Section 202 of the Code still remains with the Magistrate. If the learned Magistrate does not think it fit to enter into an inquiry within the purview of Section 202 of the Code and decide the matter after considering the evidence under Section 200 of the Code then in my view no illegality can be said to have been committed by the learned Magistrate. In other words, I am not in agreement with the submission that in view of the amendment of Section 202, it is compulsory on the part of the Magistrate to make necessary inquiry under Section 202 after examining the witness under Section 200 of the Code. It is pertinent to point out that the language of Section 203 of the Code makes it amply clear that there is no such compulsion on the part of the Magistrate to conduct further inquiry under Section 202 even though, he satisfied about the fate of the complaint case after examining the complainant and witness under Section 200 of the Code. The legal position as highlighted above is clearly indicative that postponement of issue of process under Section 202 is not compulsory and still remains at the discretion of the Magistrate. …..The word ‘far off places’ as appearing in the notes on clause clearly indicates that learned Magistrate shall apply his mind only where he finds that accused is residing far away from the territorial jurisdiction of the court. Such consideration the Magistrate is required to make when he has examined the evidence adduced under Section 200. But if the learned Magistrate is of the view that this is not a fit case to enter into the field of Section 202 of the Code; then the language of Section 202 does not make it obligatory on him to hold further inquiry under Section 202 of the Code. Non-compliance of the procedural law by itself cannot be visited with any consequence unless such consequence is prescribed by the legislature. I have already pointed out that the application of Section 202 is discretionary and when the law has not demanded or make it obligatory on the part of the Magistrate to enter into such inquiry as provided under Section 202 then in my view non-compliance of the same cannot and does not call for any interference. If the learned Magistrate has not exercised his discretion or did not think if necessary to enter into further inquiry in terms of Section 202 then there is no language either in Section 200 or Section 202 which compels him to do so. In this connection I must point out Section 461 of the Code stipulate irregularities which vitiate proceedings. The matter falling under the said Section clearly indicates that violation of non-compliance of the same shall make the enter proceeding void. Non-compliance of amended provision of Section 202 or for that matter non-compliance of Section 202 does not find place in Section 461. In other words, the non-compliance of amended provision under Section 202 of the Code is not vitiated with any prescription or consequence, and as such the entire provision of Section 202, even after amendment remains discretionary and not obligatory. The language of Section 465 of the Code is set out below: “465. In other words, the non-compliance of amended provision under Section 202 of the Code is not vitiated with any prescription or consequence, and as such the entire provision of Section 202, even after amendment remains discretionary and not obligatory. The language of Section 465 of the Code is set out below: “465. Finding or sentence when reversible by reason of error, omission or irregularity:- (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passes by a court of competent jurisdiction shall be reversed or altered by a Court of appeal, conformation or revision on account of any error, omission or irregularity in the complaint, summon, warrant, proclamation , order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in opinion of that Court, a failure of justice has in fact been occasioned thereby. (2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.” The sanction as highlighter above further protects error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceeding. I am highlighting the language of Section 465, in view of the fact that non-compliance of procedural matters unless it cause serious prejudice cannot and does not by itself affects a criminal case. Procedure appears as an aid to substantive justice and the substantive justice so far as the criminal Court is concerned is to decide the commission of offence alleged to have been committed by the accused persons, over emphasis or over reliance about the compliance of the procedural law may be counter productive and instead of advancing the cause to justice, the same may operate as an hindrance to the cause of substantial justice. In view of my above discussion the issue as to scope and object of amended provision of Section 202 is answered as follows: 1. The application of Section 202 of the Code is discretionary and the same will come into operation only in cases where the Magistrate in his discretion decides to postpone the issue of process. 2. In view of my above discussion the issue as to scope and object of amended provision of Section 202 is answered as follows: 1. The application of Section 202 of the Code is discretionary and the same will come into operation only in cases where the Magistrate in his discretion decides to postpone the issue of process. 2. In cases where the learned Magistrate postpones the issue of process then it is mandatory on his part to inquire in case of accused persons who are residing outside the jurisdiction of the Court.” 8. This court does not want to take a different view from the decision of the Calcutta High Court simply for the reason that SLP is pending before the Honourable Supreme Court challenging the order passed by the High Court. This Court agrees with the view taken by the Honourable Calcutta High Court. 9. The contention of the petitioner regarding the presentation of the cheque for second time as impermissible is only to be rejected. According to the complainant after the cheque was returned for first time, it was intimated to the accused and the accused requested the complainant to represent it and as such, the cheque was again represented. No notice was issued by the complainant to the accused when the cheque was returned for insufficient fund for the first time and as such the cause of action did not arise. The cause of action arose after the cheque being presented and returned for the second time, statutory notice being sent to the accused, when the accused failed to make payment within the stipulated period. 10. The Honourable Supreme Court has held in the decision reported in 2005 (4) SCC 417 (Prem Chand Vijay Kumar vs. Yashpal Singh and another) as follows: “8. Clause(a) of the proviso to Section 138 does not put any embargo upon the payee to successively present a dishonoured cheque during the period of its validity. This apart, in the course of business transactions it is not uncommon for a cheque being returned due to insufficient funds or similar such reasons and being presented again by the payee after some time, on his own volition or at the request of the drawer, in expectation that it would be encashed. This apart, in the course of business transactions it is not uncommon for a cheque being returned due to insufficient funds or similar such reasons and being presented again by the payee after some time, on his own volition or at the request of the drawer, in expectation that it would be encashed. The primary interest of the payee is to get his money and not prosecution of the drawer, recourse to which, normally it taken out of compulsion and not choice. On each presentation of the cheque and its dishonour, a fresh right –and not a cause of action-accrues in his favour. He may, therefore, without taking preemptory action in exercise of his such right under clause (b) of Section 138, go on presenting the cheque so as to enable him to exercise such right at any point of time during the validity of the cheque. 9. But once he gives a notice under clause (b) of Section 138, he forfeits such right as in case of failure of the drawer to pay the money within the stipulated time, he would be liable for offence and the cause of action for filing the complaint will arise.” 11. As per the above principle laid down by the Honourable Supreme Court, there is no defect in the complaint. There is no valid ground for quashing the proceedings, accordingly, this criminal original petition is dismissed. Consequently, connected miscellaneous petitions are closed.