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2015 DIGILAW 283 (CAL)

Nirupama Saha v. State of West Bengal

2015-03-25

SHIB SADHAN SADHU

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JUDGMENT:- Shib Sadhan Sadhu, J. 1. This is an application under Section 482 of the Code of Criminal Procedure, 1973 seeking for setting aside the impugned order dated 10th December, 2014 passed by the Learned Metropolitan Magistrate, 8th Court, Calcutta in Complaint Case No.C/2846 of 2009 rejecting the petition dated 18.11.2014 filed by the present petitioner praying for dropping of the case. 2. The aforesaid case being Case No.C/2846 of 2009 was filed for offence under Section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as the Act). The allegation is that the accused/petitioner purchased Gold ornaments worth Rs.97,610/- on consideration of 3 (three) cheques being Cheque No.879824 of Rs.37,610/- dated 12.05.2009, Cheque No.879826 of Rs.30,000/- dated 12.06.2009 and Cheque No.879825 of Rs.30,000/- dated 12.07.2009 drawn on State Bank of India, Grey Street Extn. Branch under Police Station Maniktala, Kolkata-700004. When the cheques were presented for encashment those were dishonoured due to insufficiency of funds. Even after issuance of statutory notice, there was no payment. In such circumstances, the aforesaid case was filed before the Learned Additional Chief Metropolitan Magistrate, Calcutta. 3. I have heard Mr. Vijay Nand Misra, Learned Advocate appearing for the petitioner. I have also perused all the available materials on record including the impugned order with meticulous care. 4. Mr. Misra, Learned Advocate, appearing on behalf of the petitioner, submitted that the petitioner/accused is a resident of Ultadanga road under Police Station Ultadanga, Kolkata – 700004 which is clearly outside the territorial jurisdiction of the Learned Metropolitan Magistrate, Calcutta. Therefore, in terms of the mandatory provisions as laid down under Section 202 of the Cr. P.C. it was obligatory on the part of the Learned Magistrate to make further inquiry into the case by himself or by directing an investigation to be made by a police officer or by any other person for deciding whether or not there was sufficient ground for proceeding. But admittedly the Learned Metropolitan Magistrate has not complied with such mandatory provision. Therefore, according to him, the impugned order is bad in law and is liable to be set aside. 5. Having regard to the submission advanced by Mr. Misra, Learned Counsel appearing on behalf of the petitioner I would like to say at the very outset that the law is well-settled on the point that the use of the expression “shall” in Section 202 of the Cr. 5. Having regard to the submission advanced by Mr. Misra, Learned Counsel appearing on behalf of the petitioner I would like to say at the very outset that the law is well-settled on the point that the use of the expression “shall” in Section 202 of the Cr. P.C. prima facie makes the inquiry or the investigation, as the case may be, by the Magistrate mandatory. 6. Chapter XV (Sections 200-203) relates to “Complaints to Magistrates” and covers cases before actual commencement of proceedings in a court or before a Magistrate. Section 200 of the Code requires a Magistrate taking cognizance of an offence to examine the complainant and his witnesses on oath. Section 202, however, enacts that a Magistrate is not bound to issue process against the accused as a matter of course. It enables him before the issue of process either to 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 there is sufficient ground for proceeding further. The underlying object of the inquiry under Section 202 is to ascertain whether there is prima facie case against the accused. It thus allows a Magistrate to form an opinion whether the process should or should not be issued. The scope of inquiry under Section 202 is, no doubt, extremely limited. At that stage, what a Magistrate is called upon to see is whether there is sufficient ground for proceeding with the matter and not whether there is sufficient ground for conviction of the accused. However, no specific mode or manner of inquiry is provided under Section 202 of the Code. 7. The aforesaid complaint was filed on 28th August, 2009 in the Court of Additional Chief Metropolitan Magistrate, Calcutta. The Learned Magistrate took cognizance of the offence and transferred the case to the Court of Learned Metropolitan Magistrate, 8th Court, Calcutta for enquiry and disposal. On receipt of the record the Transferee Magistrate adjourned the case to 12th January, 2010 for enquiry. On the said date, the complainant was present and he filed affidavit along with documents under Section 145 of the N.I. Act and thereafter the Learned Magistrate issued process against the accused person on being satisfied that a prima facie case for the alleged offence punishable under Section 138 of the Act was established. On the said date, the complainant was present and he filed affidavit along with documents under Section 145 of the N.I. Act and thereafter the Learned Magistrate issued process against the accused person on being satisfied that a prima facie case for the alleged offence punishable under Section 138 of the Act was established. But the accused (present petitioner) did not turn up despite receipt of summons and so warrant of arrest was issued against him. After more than one year he surrendered and he was released on bail. Thereafter, he was examined under Section 251 Cr. P.C. and trial was held. After closure of the evidence of complainant, the accused was examined under Section 313 Cr. P.C. After taking two adjournments the accused/petitioner examined herself as D.W. Thereafter, the case was fixed for hearing argument on 06.08.2013. When the case was fixed on 18.11.2014 for hearing of argument as last chance, the petitioner/accused filed the petition challenging the maintainability of the case which was heard and rejected by the impugned order which has been challenged by filing the instant revision. 8. Therefore, from the aforesaid factual episodes, it become crystal clear that the Learned Magistrate held an inquiry as envisaged under Section 202 of the Code and only thereafter, he had directed for issuance of process. It is interesting to see that the petitioner did not feel aggrieved or prejudiced for such a long period since after the date of issuance of process against her but suddenly she woke up from slumber and became aware that she has been prejudiced or that for such alleged non-compliance failure of justice has been occasioned. But curiously enough the petitioner has not spelt out a single word for such inordinate inertia. As such it can be safely inferred that there was no prejudice or failure of justice in terms of Section 465 of the Cr. P.C. which may vitiate the proceeding or the order of issuance of process. 9. Therefore, relying on the latest decision of the Hon’ble Supreme Court reported in 2014 (3) AICLR 107 (Vijay Dhanuka V. Najima Mamtaj) I do not find any merit in the instant Revisional Application and the same is accordingly dismissed. 10. P.C. which may vitiate the proceeding or the order of issuance of process. 9. Therefore, relying on the latest decision of the Hon’ble Supreme Court reported in 2014 (3) AICLR 107 (Vijay Dhanuka V. Najima Mamtaj) I do not find any merit in the instant Revisional Application and the same is accordingly dismissed. 10. Keeping in view the age of the case and also the nature of the offence, the Learned Metropolitan Magistrate, 8th Court, Calcutta is directed to dispose of this case finally within a month from the date of communication of this order. 11. Criminal Section is directed to deliver urgent photostat certified copy of this judgment to the petitioner, if applied for, as early as possible. 12. Let a copy of this judgment be sent to the Learned Metropolitan Magistrate, 8th Court, Calcutta forthwith for information and compliance.