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2014 DIGILAW 538 (ORI)

RAJENDRA KUMAR SAHOO v. RAMAKANTA SAHOO

2014-08-27

S.C.PARIJA

body2014
JUDGMENT : S.C. Parija, J.?Learned counsel for the petitioner files written note of submission and learned counsel for the opposite party files copy of the complaint in Court today, which are kept on record. Heard learned counsel for the petitioner and learned counsel appearing for the opposite party. 2. This is an application filed under Section 482 Cr.P.C., praying for quashing of the order of cognizance dated 24.7.2012, passed by the learned 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 cognizance and issuance of process, the same is liable to be quashed. In this regard, learned counsel for the petitioner has relied upon a decision of this Court in L.P. Electronics (Orissa) Pvt. Ltd. and Others Vs. Tirupati Electro Marketing Pvt. Ltd. in support of his contention that non-compliance of the mandatory provisions of Section 202(1) Cr.P.C. vitiates the order of cognizance and issuance of process. 4. The impugned order of cognizance dated 24.7.2012, passed by the learned J.M.F.C., Pipli, in I.C.C. No. 37 of 2012, reads as under: "The case record is put up for consideration on the point of cognizance. Perused the complaint petition, initial statement of the complainant furnished in the shape of an affidavit, the impugned cheque, Memorandum of the Bank and other relevant documents such as copy of legal notice, postal A/D etc. On careful scrutiny of all these documents and the sworn affidavit of the complainant clearly shows that prima facie material suggesting commission of an offence U/s.138 of the N.I. Act well exist in the case record. In such circumstances cognizance of the offence U/s.138 of the N.I. Act is taken as the materials available on record prima facie suggest the involvement of the accused Rajendra Kumar Sahoo in commission of such offence. In such circumstances cognizance of the offence U/s.138 of the N.I. Act is taken as the materials available on record prima facie suggest the involvement of the accused Rajendra Kumar Sahoo in commission of such offence. The complainant is directed to file requisites within seven days for issuance of summons to the accused. Put up on the date fixed for appearance of the accused." 5. The question which falls for 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 from 20.3.2006 is extremely limited to the ascertainment of truth of false-hood of the allegations made in the complaint, only to ensure that innocent persons living in or off places are not harassed by unscrupulous persons. The enquiry envisaged under Section 202(1) Cr.P.C. is only for finding out whether or not there are sufficient grounds for proceeding against the accused. Therefore, if on the existing materials, it is not possible for the Magistrate to take cognizance of the offence, he can direct an enquiry under Section 202 Cr.P.C. However, if the materials existing are sufficient, there is no impediment for the Magistrate to take cognizance of the offence and issue process against the accused, without holding any such enquiry. 7. In the present case, the complainant has filed the complaint along with the relevant documents, including the original cheque, document with regard to the return of the same as dishonoured by the drawee bank, notice issued by the complainant to the accused, documents showing receipt of the same by the accused and the initial statement in form of affidavit in support of the allegations made in the complaint. Learned Magistrate has duly considered the said materials on record in taking cognizance of the offence under Section 138 N.I. Act and directing issuance of process to the accused-petitioner. 8. In A.C. Narayanan Vs. State of Maharashtra and Another the Hon'ble Supreme Court while dealing with the question whether the proceeding 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 present and to examine him as to the facts contained in the affidavit submitted by the complainant in support of his complaint. However, it is a matter of discretion and the Magistrate is not bound to call upon the complainant to remain present before the Court and to examine him upon oath for taking decision whether or not to issue process on the complaint under Section 138 of the N.I. Act. For the purpose of issuing process under Section 200 of the Code, 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. It is only if and where the Magistrate, after considering the complaint under Section 138 of the N.I. Act, documents produced in support thereof and the verification in the form of affidavit of the complainant, is of the view that examination of the complainant or his witness(s) is required, the Magistrate may call upon the complainant to remain present before the Court and examine the complainant and/or his witness upon oath for taking a decision whether or not to issue process on the complaint under Section 138 of the N.I. Act. 26. 26. While holding that there is no serious conflict between the decisions in M.M.T.C. Ltd. and Another Vs. Medchl Chemicals and Pharma (P) Ltd. and Another, and Janki Vashdeo Bhojwani and Another Vs. Indusind Bank Ltd. and Others we clarify the position and answer the questions in the following manner: xxx xxx xxx (iv) In the light of section 145 of N.I. Act, 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 reference in the negative, relying upon the decision of the apex Court in A.C. Narayanan (supra). 10. In a recent decision of the apex Court in Indian Bank Association and Others Vs. Union of India (UOI) and Another the Hon'ble Court while dealing with the objectives of the amended provisions of Sections 143 to 147 of the N.I. Act has come to observe as under: "We have indicated that under Section 145 of the Act, the complainant can give his evidence by way of an affidavit and such affidavit shall be read in evidence in any inquiry, trial or other proceedings in the court, which makes it clear that a complainant is not required to examine himself twice i.e. one after filing the complaint and one after summoning of the accused. The affidavit and the documents filed by the complainant along with complaint for taking cognizance of the offence are good enough to be read in evidence at both the stages i.e. pre-summoning stage and the post-summoning stage. In other words, there is no necessity to recall and re-examine the complainant after summoning of accused, unless the Magistrate passes a specific order as to why the complainant is to be recalled. In other words, there is no necessity to recall and re-examine the complainant after summoning of accused, unless the Magistrate passes a specific order as to why the complainant is to be recalled. Such an order is to be passed on an application made by the accused or under Section 145(2) of the Act suo motu by the court. In summary trial, after the accused is summoned, his plea is to be recorded under Section 263(g) CrPC and his examination, if any, can be done by a Magistrate and a finding can be given by the court 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 worthy of emulation by the criminal courts all over the country dealing with cases under Section 138 N.I. Act and has accordingly given the following directions: "23.1. The Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall scrutinize the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons. 23.2. The MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. The court, in appropriate cases, may take the assistance of the police or the nearby court to serve notice to the accused. For notice of appearance, a short date be fixed. If the summons is received back unserved, immediate follow-up action be taken 23.3. The court, in appropriate cases, may take the assistance of the police or the nearby court to serve notice to the accused. For notice of appearance, a short date be fixed. If the summons is received back unserved, immediate follow-up action be taken 23.3. The court may indicate in the summons that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, the court may pass appropriate orders at the earliest. 23.4. The court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251 CrPC to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for recalling a witness for cross-examination. 23.5. The court concerned must ensure that examination-in-chief, cross-examination and re-examination of the complainant must be conducted within three months of assigning the case. The court has option of accepting affidavits of the witnesses, instead of examining them in court. The witnesses to the complaint and accused must be available for cross-examination as and when there is direction to this effect by the Court. 24. We, therefore, direct all the criminal courts in the country dealing with Section 138 cases to follow the abovementioned procedures for speedy and expeditious disposal of cases falling under Section 138 of the Negotiable Instruments Act. The writ petition is, accordingly, disposed of, as above." 12. In view of the settled position of law as discussed above, the decision of this Court in L.P. Electronics (supra) is no more good law. 13. For the reasons as aforestated, I do not find any infirmity in the impugned order of the learned Magistrate taking cognizance of the offence under Section 138 N.I. Act and directing issuance of process to the accused-petitioner, so as to warrant any interference. CRLMC and Misc. Case being devoid of merits, the same are accordingly dismissed. Interim order dated 22.8.2013 stands vacated.