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2013 DIGILAW 148 (ORI)

Manoj Kumar Bansal v. Sunil Kumar Agrawal

2013-05-14

B.K.NAYAK

body2013
JUDGMENT B. K. NAYAK, J. : Aggrieved by judgment dated 30.07.2011 passed by the learned Additional Sessions Judge-cum-Special Judge (Vigilance), Bhawanipatna in Criminal Appeal No. 17/2 of 2009-2011 confirming the judgment dated 21.03.2009 passed by the learned J.M.F.C., Bhawanipatna in I.C.C.No. 39 of 2007/Trial No. 274 of 2008 convicting the petitioner under Section 138 of the N.I.Act and sentencing him to undergo S.I. for six months and to pay a compensation of Rs. 3,00,000/- to the complainant-opposite party, the petitioner has filed this criminal revision. 2.The case of the prosecution is that the complainant is a businessman, who deals in rice and paddy. He had business transaction with the accused-petitioner since long and in course of such transaction the accused owned him Rs. 3,00,000/- and accordingly issued a cheque on 30.01.2007. The complainant presented the cheque in the State Bank of India, Kesinga Branch, but it was returned to him by the Bank due to insufficiency of funds. The complainant thereafter requested the accused to pay the dues and the latter having not responded, he issued a pleader notice to the accused on 15.06.2007 and the A.D. thereof returned on 25.06.2007. In spite of issuance of notice the accused did not pay the money, for which the complaint was filed. 3.The defence plea was of false implication. The accused also denied business transaction with the complainant. His specific case was that he had issued the cheque to one Sunil Kumar Agrawal, S/o. Balkishan Agrawal, a namesake of the complainant, as security for advancement of a loan of Rs. 3,00,000/- to the brother of the accused, who was in need of money for construction of a house, and that after his brother repaid the money said Sunil Kumar Agrawal returned the cheque through one Satyanarayan Agrawal, who is the father of the complainant, and that the said cheque has been misutilised by the complainant. 4.In order to prove its case the complainant examined himself as P.W.1 and proved a number of documents whereas the accused examined three defence witnesses. D.W.1 is one Sunil Kumar Agrawal, S/o. Balkishan Agrawal, D.W.2 is the brother of the accused and D.W.3 is an independent witness. 5.On consideration of the evidence on record, the Trial Court found the accused guilty and accordingly passed the order of conviction and sentence. D.W.1 is one Sunil Kumar Agrawal, S/o. Balkishan Agrawal, D.W.2 is the brother of the accused and D.W.3 is an independent witness. 5.On consideration of the evidence on record, the Trial Court found the accused guilty and accordingly passed the order of conviction and sentence. Appeal filed by the petitioner against such conviction and sentence has been rejected by the lower appellate Court as aforesaid. 6.In assailing the impugned judgments, the learned counsel for the petitioner submitted that since both the parties reside at Rupra Road, P.S. Narla in the District of Kalahandi within the jurisdiction of the learned J.M.F.C. M.Rampur and the cheque was issued by the accused was presented at the State Bank of India, Kesinga Branch, the J.M.F.C., Bhawanipatna had no territorial jurisdiction to try the case. His second submission is that the residence of the accused-petitioner being beyond the territorial jurisdiction of the J.M.F.C., Bhawanipatna, the J.M.F.C. should have conducted enquiry under Section 202, Cr.P.C. before taking cognizance, which is mandatory and that he having not done so, the cognizance is bad and illegal which vitiates the entire trial. It is his further submission that there is no evidence to the effect that the cheque was given to the complainant towards any debt and that in view of the specific plea and evidence led by the accused to the effect that the cheque had been issued to another Sunil Kumar Agrawal by way of security for a loan given by him to the brother of the petitioner and that his brother having repaid the loan the said Sunil Kumar Agrawal returned the cheque through the father of the present opposite party-complainant which has been misutilised by the complainant, the impugned orders of conviction and sentence must be set aside. The opposite party argued his case personally during hearing and refuted the contentions raised by the learned counsel for the petitioner and stated that the concurrent findings given by the Courts below are based on correct appreciation of the facts and law and, therefore, they do not warrant interference. The opposite party argued his case personally during hearing and refuted the contentions raised by the learned counsel for the petitioner and stated that the concurrent findings given by the Courts below are based on correct appreciation of the facts and law and, therefore, they do not warrant interference. 7.With regard to the first contention raised by the learned counsel for the petitioner, it is settled by a decision reported in (2010) 47 OCR 524; Madhu Mohanty v. State of Orissa and another wherein this Court has observed that for the offence under Section 138 of the Act complaint can be filed at any of the following places : (1) Place where cheque was drawn; (2) Place of presentation of the cheque to the bank; (3) Where the complainant resides or where the payee resides; or (4) Where the complainant or accused carries on business. In the case at hand, the cheque in question was issued by the S.B.I., Kesinga Branch and it was also returned unpaid by the said drawee bank for insufficiency of funds, which comes within the jurisdiction of the J.M.F.C., Bhawanipatna. As such, the offence was partly committed within the jurisdiction of the J.M.F.C., Bhawanipatna and, therefore, he had jurisdiction to try the case. The contention raised by the learned counsel for the petitioner thus fails. 8.The next question is whether the non-compliance with the mandate of amended Section 202, Cr.P.C. to conduct enquiry before issuing process to an accused person residing outside the jurisdiction of the Magistrate vitiates the order of cognizance and issuance of process and as such vitiates the whole trial ? Sub-section (1) of Section 202, Cr.P.C. as amended by Act 25 of 2005 with effect from 23.06.2006, which is irrelevant for our purpose, is extracted hereunder : "202. Sub-section (1) of Section 202, Cr.P.C. as amended by Act 25 of 2005 with effect from 23.06.2006, which is irrelevant for our purpose, is extracted hereunder : "202. Postponement of issue of process - (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised 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 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." It is clear that by virtue of the amendment, the legislature has mandated for conducting enquiry under Section 202, Cr.P.C. before issuance of process against the accused where the accused is residing at a place beyond the territorial jurisdiction of the Magistrate. This Court in the decision reported in 102 (2006) CLT 530; Parshottam Lal Vadera v. Satyanarayan Sadangi has held that the insertion of the words "and shall, in a case where the accused is residing at a place beyond the area in which he exercised his jurisdiction", make it mandatory for the Magistrate to inquire into the case himself in a case where the accused is residing beyond his territorial jurisdiction. 9.The records of the learned J.M.F.C. reveal that he took cognizance of the offence under Section 138 of the N.I. Act and issued process to the accused-petitioner after taking initial statement of the complainant on affidavit and perusing the documents filed by him. There has been no order for conducting enquiry in terms of Section 202, Cr.P.C. before directing issuance of process to the accused-petitioner. There has been no order for conducting enquiry in terms of Section 202, Cr.P.C. before directing issuance of process to the accused-petitioner. Admittedly, the accused is a resident of Narla Road, a place beyond the territorial jurisdiction of the learned J.M.F.C., Bhawanipatna and, therefore the mandate of the amended provision of Section 202 (1), Cr.P.C. has not been followed by the learned J.M.F.C. But, the question is whether non-compliance of such mandatory provision with regard to taking of cognizance would vitiate the entire trial and the ultimate order of conviction ? Apparently, the question of non-compliance of the mandate of Section 202, Cr.P.C. was not raised during the pendency of the proceeding before the trial Magistrate and also before the lower appellate Court. 10.The apex Court in the decision reported in (2012) 4 SCC 516 ; Rattiram and others v. State Madhya Pradesh while examining the question whether under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the special Court, which is essentially a Court of session, can directly take cognizance without commitment of the case by the concerned Judicial Magistrate, affirmed its earlier view in Gangula Ashok v. State of Andhra Pradesh; (2000) 2 SCC 504 and held that the Special Court cannot directly take cognizance, but at the same time held that if the question was not raised at the appropriate stage but raised after order of conviction was recorded by the Trial Court it has to be seen whether the non-compliance with the statutory mandate occasioned a failure of justice as per the provision of Section 465 of the Cr.P.C. After noticing the scope of Section 465 of the Cr.P.C. and taking into account some earlier decisions on the point the Court held as under : "37. On a studied scrutiny of the anatomy of the said provision, it is luculent that the emphasis has been laid on a "court of competent jurisdiction" and "error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial" and "a failure of justice has in fact been occasioned thereby". The legislative intendment inhered in the language employed is graphically clear that lancination or invalidation of a verdict after trial is not to be taken recourse to solely because thee is an error, omission or irregularity in the proceeding. The legislative intendment inhered in the language employed is graphically clear that lancination or invalidation of a verdict after trial is not to be taken recourse to solely because thee is an error, omission or irregularity in the proceeding. The term "a failure of justice" has been treated as the sine qua non for setting aside the conviction." 11.The purpose of enquiry under Section 22 of the Cr.P.C. is only to assertion prima facie the truth of the allegations made in the complaint for the purpose of issuance of process against the accused. Where on the basis of the complaint petition and the initial statement of the complainant, the Magistrate is not satisfied about prima facie commission of offence by the accused, in its discretion it may direct for enquiry, the purpose being to gather some more material to find out the existence of a prima facie case. This enquiry has been mandated by virtue of the amendment to avoid issuance of process to accused person staying outside the territorial jurisdiction of the Magistrate in vexatious proceedings. In a case of complaint under Section 138 of the N.I.Act, there may not be many witnesses except the complainant himself, who is the drawee of the cheque or the holder in due course, and for finding out a prima facie case mainly the documents like the dishonoured cheque, the copy of notice, postal receipt, etc. would be relevant. The receipt and perusal of such documents serve the purpose of enquiry. In the instant case, though no enquiry has been specifically shown to have been conducted under Section 202, Cr.P.C. because nothing more would have been brought out if the case would have been fixed for enquiry. The Magistrate took cognizance on perusal of the complaint petition, the initial statement and the documents filed with the complaint petition which were sufficient to make out a prima facie case. In the circumstances, I am of the view that no failure of justice has occasioned for not fixing the case for conducting enquiry by the Magistrate under Section 202 Cr.P.C. before issuing process to the accused-petitioner. Therefore, the non-compliance of the mandatory provision of Section 202 of the Cr.P.C. does not vitiate the conviction. In the circumstances, I am of the view that no failure of justice has occasioned for not fixing the case for conducting enquiry by the Magistrate under Section 202 Cr.P.C. before issuing process to the accused-petitioner. Therefore, the non-compliance of the mandatory provision of Section 202 of the Cr.P.C. does not vitiate the conviction. 12.Coming to the last submission made by the learned counsel for the petitioner, it is seen that three defence witnesses have been examined by the petitioner in support of his defence plea that the cheque had been issued to another Sunil Kumar Agrawal, a namesake of the petitioner, for securing a loan of Rs. 3,00,000/- given by the said Sunil Kumar Agrawal to the petitioner's brother and that on repayment of the said loan by the brother of the petitioner, the said Sunil Kumar Agrawal returned the cheque through the father of the present opposite party-complainant, which has been misutilised by the opposite party. 13.The law is well settled that while the prosecution has to prove its case beyond reasonable doubt, the defence can prove its case by mere preponderance of probability. D.W.-1 Sunil Kumar Agrawal, S/o. Balkishan Agrawal stated in his evidence that he had given a loan of Rs. 3,00,000/- to Sanjya Bansal, brother of the accused, and Sanjya gave him a cheque of Rs. 3,00,000./- on 30.01.2007 drawn on the account of accused-Manoj, as a security-guarantee. Sanjya returned the money to him and he returned the cheque through one Satyanarayan Agrawal, the father of the complainant. It also appeared from his evidence that some days after, the accused made a telephone call to him and stated that he has not received the cheque and that he received a notice from the complainant and D.W.1 advised him to give a reply through his advocate. It transpires from the cross-examination that he is the cousin of the accused and that he had never disclosed this fact to any person earlier. Similarly, D.W.2-Sanjya Bansal, brother of the accused, testified that he received a loan of Rs. 3,00,000/- from D.W. 1 and his brother-accused issued a cheque as a security and D.W. 2 repaid the loan to D.W.1, who returned the cheque through Satyanarayan Agrawal, father of the complainant. In the cross-examination, he has admitted to have not disclosed about this fact to any body before hand. 3,00,000/- from D.W. 1 and his brother-accused issued a cheque as a security and D.W. 2 repaid the loan to D.W.1, who returned the cheque through Satyanarayan Agrawal, father of the complainant. In the cross-examination, he has admitted to have not disclosed about this fact to any body before hand. Their evidence is however completely silent as to when D.W.1 gave the loan to D.W.2, and similarly when D.W.2 returned the loan amount to D.W.1 In normal course, on return of the loan amount D.W.1 would have returned the cheque to D.W.2 and the latter would have insisted upon for return of the same. There is no explanation as to why the cheque was not returned to D.W.2 when he repaid the loan to D.W.1 and why it was felt necessary to return the cheque later through Satyanarayan Agarwal. Even after repayment of the loan by D.W. 2 to D.W.1, the accused also did not insist upon return of the cheque given by him by way of security. This unnatural conduct of the accused and both D.W.1 and D.W.2 make the defence evidence wholly unreliable. Both the Courts below have, therefore, rightly disbelieved the defence evidence. 14.In the light of the discussions made above, I find no infirmity in the impugned judgments and accordingly, this CRLREV is dismissed. CRLREV dismissed.