Research › Search › Judgment

Andhra High Court · body

2012 DIGILAW 838 (AP)

V. Suresh Reddy v. E. Surya Prakash

2012-09-11

B.SESHASAYANA REDDY

body2012
Judgment : This Criminal Petition has been taken out under Section 482 Cr.P.C by petitioner-V.Suresh Reddy, accused in C.C.No.16 of 2010 on the file of Junior Civil Judge-cum-Judicial First Class Magistrate, Kamalapuram, Kadapa District to quash the proceeding therein. 2. 1st respondent-E.Surya Prakash Goud filed a complaint against the petitioner/accused in the Court of Junior Civil Judge-cum-Judicial First Class Magistrate, Kamalapuram alleging inter alia that the petitioner/accused borrowed an amount of Rs.4,50,000/- from him on 05.4.2009 agreeing to repay the same with interest and executed a promissory note in his favour. On the same day, the petitioner/accused issued a cheque bearing No.234540 drawn on Andhra Bank, Apollo Hospital, Jubilee Hills, Hyderabad for Rs.4,50,000/- towards discharge of the pronote debt. He presented the cheque on 18.09.2009 for collection through State Bank of Hyderabad, Yerraguntla village, Kadapa District. The cheque came to be returned on 23.9.2009 on the ground of `insufficient funds’ and he received the intimation from the State Bank of Hyderabad, Yerraguntla Branch on 05.10.2009. Thereupon, he issued a statutory notice on 02.11.2009 calling upon the petitioner/accused to pay the amount covered under the cheque in question. The petitioner/accused received the notice and issued a reply dated 21.11.2009 disputing his liability to pay the cheque amount. Since the petitioner/accused failed to pay the cheque amount despite statutory notice, he renders himself liable for punishment for the offence under Section 138 of the Negotiable Instruments Act. The learned Magistrate recorded the sworn statement of the 1st respondent-complainant and took cognizance of the offence under Section 138 of the Negotiable Instruments Act and issued summons to the petitioner/accused, by order dated 19.02.2010. Hence this petition to quash the proceeding in C.C.No.16 of 2010. 3. Heard learned counsel appearing for the petitioner/accused and learned counsel appearing for the 1st respondent-complainant and perused the material brought on record. 4. Hence this petition to quash the proceeding in C.C.No.16 of 2010. 3. Heard learned counsel appearing for the petitioner/accused and learned counsel appearing for the 1st respondent-complainant and perused the material brought on record. 4. It is contended by the learned counsel appearing for the petitioner/accused that the learned Magistrate has erred in issuing process/summons to the petitioner/accused even before conducting enquiry on the complaint of the 1st respondent-complainant as provided under the amended sub-section (1) of Section 202 of Cr.P.C. It is also contended by the learned counsel that no part of cause of action has arisen within the jurisdiction of the Court of Judicial First Class Magistrate, Kamalapuram and therefore, very entertaining of the complaint by the Judicial First Class Magistrate, Kamalapuram is without jurisdiction and therefore, continuance of proceedings against the petitioner-accused in C.C.No.16 of 2010 amounts to abuse of process of Court. In support of his contentions, reliance has been placed on the judgment of High Court of Punjab and Haryana in Neeta Sinha v. P.S.Raj Steels Pvt. Ltd. (2010-CRIMES-4-50), High Court of Bombay in S.C.Mathurv. Elektronik Lab (2010-LAWS (BOM)-1-67)and the decisions of this Court in N.SanthiLakshmi v. State of A.P., rep. by its Public Prosecutor (Crl. Petition No.376 of 2012 decided on 21.02.2012)and Dr.G.VaraPrasad v. State of A.P., rep. by it’s Public Prosecutor (Crl. Petition No.12066 of 2011 decided on 25.11.2011). 5. Learned counsel appearing for the 1st respondent-complainant submits that the petitioner/accused issued cheque at Yerraguntla village on the date on which he executed promissory note in favour of the 1st respondent-complainant and therefore, part of cause of action has arisen within the jurisdiction of Judicial First Class Magistrate Court, Kamalapuram. It is also contended by him that the learned Magistrate took cognizance of the offence after considering the evidence adduced and also the documents placed on record by the 1st respondent-complainant and once cognizance is taken, no further inquiry is contemplated before issuance of summons to the petitioner/accused. 6. Section 177 of the Code of Criminal Procedure determines the jurisdiction of the Court trying the matter. The court ordinarily will have the jurisdiction only where the offence has been committed. The provisions of Sections 178 and 179 of the Code of Criminal Procedure are exceptions to Section 177. These provisions presuppose that all offences are local. Therefore, the place where an offence has been committed plays an important role. The court ordinarily will have the jurisdiction only where the offence has been committed. The provisions of Sections 178 and 179 of the Code of Criminal Procedure are exceptions to Section 177. These provisions presuppose that all offences are local. Therefore, the place where an offence has been committed plays an important role. In terms of Section 177 of the Criminal Procedure Code, it is the place where the offence is committed. In essence, it is the cause of action for initiation of the proceedings against the accused. A court derives a jurisdiction only when the cause of action arises within its jurisdiction. A distinction must be borne in mind between ingredient of an offence and commission of a part of the offence. 7. There are five essential ingredients of the offence under Section 138 of the N.I. Act as held by the Supreme Court in the case of K.Bhaskaranv. Sankaran Vaidhyan Balan (1999) 7 SCC 510 )and they are: 1) drawing of the cheque; 2) presentation of the cheque to the bank; (3) returning the cheque unpaid by the drawee bank; (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount; (5) failure of the drawer to make payment within 15 days of the receipt of the notice. 8. The 1st respondent-complainant stated in the complaint that the petitioner/accused borrowed Rs.4,50,000/- on 05.4.2009 promising to repay the same with interest and issued cheque bearing No.234540 for Rs.4,50,000/- on the same day towards discharge of the pro note debt. It is the assertion of the 1st respondent-complainant that the pro noteas well as the cheque are issued at Yerraguntla which is within the jurisdiction of the Court of Judicial First Class Magistrate, at Kamalapuram. 9. If it is the contention of the petitioner/accused that cheque has not been issued by him at Yerraguntla, it can be said that this issue is a triable issue, which the trial Court has to adjudicate upon basing on the evidence proposed to be adduced by the parties. .Therefore, the contention advanced by the petitioner/accused that the proceeding in C.C.No.16 of 2010 are liable to be quashed on the ground that the same are instituted in a Court not having jurisdiction, cannot be countenanced. 10. .Therefore, the contention advanced by the petitioner/accused that the proceeding in C.C.No.16 of 2010 are liable to be quashed on the ground that the same are instituted in a Court not having jurisdiction, cannot be countenanced. 10. The next point urged by the petitioner/accused is that issuance of process is not in accordance with the provisions of Section 202 Cr.P.C. For better appreciation, I may refer Section 202 Cr.P.C., which reads as hereunder:- “Postponement of issue of process:- (1) Any Magistrate, on receipt of a complaint of an offence of 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: Providedthat 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 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 the investigation all the powers conferred by this Code on an officer in charge of a police station, except the power to arrest without warrant. “ 11. .(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for the investigation all the powers conferred by this Code on an officer in charge of a police station, except the power to arrest without warrant. “ 11. The scope of enquiry under Section 202 is extremely limited only to the ascertainment of the truth or falsehood of the allegations in the complaint (i) on the material 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 for (iii) deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. 12. The procedure to be adopted when a complaint is lodged, as laid down in Sections 200 to 203 is:- .(1) Under Section 200 it is incumbent on the Magistrate taking cognizance on a complaint to examine upon oath the complainant and his witnesses present if any, at sufficient length to satisfy himself as to the veracity of the complainant and as to any points on which he is silent, or on which there by may be doubt. The object is to test whether the allegations make out a prima facie case to enable him to issue process. .(2) If he finds no prima facie reason to distrust and the facts constitute an offence under the law, it is incumbent to issue process forth-with. .(3) If he distrusts the complainant altogether or if no offence is made out, it is equally his duty to dismiss the complaint (S.203). .(4) It is only when his distrust is not sufficiently strong to warrant action upon it that it is open to him to postpone issue of process pending further inquiry under S.202. He can then inquire himself or direct an investigation to be made by a police-officer or by any private person he thinks fit. 13. A reading of the above-referred provisions indicate that further investigation or enquiry is to be taken up on receiving a complaint, and issuance of process, in case the accused is residing at a place beyond the area in which the Magistrate exercises jurisdiction, shall be postponed. 14. 13. A reading of the above-referred provisions indicate that further investigation or enquiry is to be taken up on receiving a complaint, and issuance of process, in case the accused is residing at a place beyond the area in which the Magistrate exercises jurisdiction, shall be postponed. 14. In the case on hand, the learned Magistrate considered the evidence adduced and the documents placed on record by the 1st respondent-complainant and proceeded to take cognizance of the case for the offence under Section 138 of N.I.Act. Had the learned Magistrate decided to hold further inquiry being not satisfied with the material placed on record, summon ought not have been issued to the petitioner/accused since the petitioner/accused resides beyond his jurisdiction. It is evident from the record that the learned Magistrate considered the ocular and documentary evidence adduced by the 1st respondent-complainant and proceeded to take cognizance of the case. Therefore, there is no illegality or irregularity in issuing summon to the petitioner/accused after taking cognizance of the offence punishable under Section 138 of the Negotiable Instruments Act. In that view of the matter, I find that the petitioner failed to make out valid ground to quash the proceedings in C.C.No.16 of 2010 on the file of Junior Civil Judge-cum-Judicial First Class Magistrate, Kamalapuram, Kadapa District. 15. Accordingly, the Criminal Petition is dismissed. Interim order granted on 02.07.2010 shall stand vacated.