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2016 DIGILAW 1352 (ALL)

SUNITA TRIPATHI v. GIRENDRA SINGH SENGAR

2016-04-12

HARSH KUMAR

body2016
JUDGMENT : Hon'ble Harsh Kumar, J. Rejoinder affidavit filed by learned counsel for the applicant, is taken on record. Heard Sri Sukhendu Pal Singh, learned counsel for the applicant, Sri Surendra Kumar Tripathi, learned counsel for opposite party no.1 and learned AGA for the State. The present application U/s 482 Cr.P.C. has been moved for quashing the proceedings of order dated 15.4.2015 in criminal complaint case no.17 of 2015 (Girendra Singh Vs. Smt. Sunita Tripathi), under section 138 N.I. Act, P.S. Lohamandi, District Agra. Learned counsel for the applicant contends that the present complaint under section 138 N.I. Act with regard to dishonour of cheque for Rs.1,35,000/- dated 10.11.2012 by the Bank on 4.2.2013, was initially filed in April, 2013 in the court of C.J.M., Gwalior and registered as complaint case no.6321 of 2013; that the Judicial Magistrate issued process under section 204 Cr.P.C. to summon the applicant in complaint case, but neither the summons were served on applicant nor she appeared before the Magistrate at Gwalior nor recording of the evidence as envisaged in section 145 (2) of Negotiable Instrument Act commenced; that in the meantime a pronouncement was made by Apex Court on 1.8.2014 in the case of Dashrath Rup Singh Rathore Vs. State of Maharashtra; that in view of pronouncement of Apex Court dated 1.8.2014 in the case of Dashrath Rup Singh Rathore Vs. State of Maharashtra; that in view of pronouncement of Apex Court dated 1.8.2014 in the case of Dashrath Rup Singh Rathore Vs. State of Maharashtra (2014) 9 SCC 129 , such complaints will be maintainable only at the place where the cheque was dishonoured; that as per observations made in para 20 of the judgment, the complaint was returned to opposite party no.1 for proper presentation before the Judicial Magistrate concerned at Agra on 16.12.2014 and the same was filed by opposite party no.1 before A.C.J.M., concerned at Agra on 12.1.2015, which was registered as complaint case no.17 of 2015; that after registering the complaint as complaint case no.17 of 2015, the learned Magistrate without applying his mind to the facts of the complaint and without following the procedure of recording statements of complainant and his witnesses under sections 200 and 202 Cr.P.C. as contemplated in Chapter XV of Cr.P.C., issued process in compliance with the summoning order passed by the Magistrate at Gwalior and though no such summon was ever served on the applicant, the learned Magistrate issued Non-Bailable Warrants against the applicant vide order dated 15.4.2015; that the proceedings of complaint case and issuance of non-bailable warrant or process against applicant without following due procedure as contemplated under law and without passing any reasoned order, as required under section 204 Cr.P.C. are bad in law; that the opposite party no.1 has not specifically mentioned the date of service of legal notice, which is alleged to have been sent on 2.3.2013; that in view of the above, the proceedings of complaint case, are liable to be quashed in order to prevent abuse of process of court as well as to secure the ends of justice. Per contra, learned AGA as well as learned counsel for opposite party no.1 contends that since the order under section 204 Cr.P.C. had already been passed by the Magistrate at Gwalior and subsequent thereto in view of pronouncement of Apex Court in the case of Dashrath Rup Singh Rathore Vs. Per contra, learned AGA as well as learned counsel for opposite party no.1 contends that since the order under section 204 Cr.P.C. had already been passed by the Magistrate at Gwalior and subsequent thereto in view of pronouncement of Apex Court in the case of Dashrath Rup Singh Rathore Vs. State of Maharashtra (supra), the complaint case was transferred to the Magistrate at Agra, there was no requirement for again recording of the statements of complainant and witnesses under sections 200 and 202 Cr.P.C. and passing of a fresh order under section 204 Cr.P.C. by the Magistrate at Agra; that there is no requirement of mentioning specific date of service of legal notice in complaint itself; that the application has been moved in order to delay the payment, earlier made by applicant through cheque dated 10.11.2012 for Rs.1,35,000/- and which was dishonoured for want of sufficient funds. I have gone through the judgment passed by the Apex court in the case of Dashrath Rup Singh Rathore Vs. State of Maharashtra (supra) in which it has been held in para 20 that:- "20. We are quite alive to the magnitude of the impact that the present decision shall have to possibly lakhs of cases pending in various Courts spanning across the country. One approach could be to declare that this judgment will have only prospective pertinence, i.e. applicability to Complaints that may be filed after this pronouncement. However, keeping in perspective the hardship that this will continue to bear on alleged accused/respondents who may have to travel long distances in conducting their defence, and also mindful of the legal implications of proceedings being permitted to continue in a Court devoid of jurisdiction, this recourse in entirety does not commend itself to us. Consequent on considerable consideration we think it expedient to direct that only those cases where, post the summoning and appearance of the alleged Accused, the recording of evidence has commenced as envisaged in Section 145(2) of the Negotiable Instruments Act, 1881, will proceeding continue at that place. To clarify, regardless of whether evidence has been led before the Magistrate at the pre-summoning stage, either by affidavit or by oral statement, the Complaint will be maintainable only at the place where the cheque stands dishonoured. To clarify, regardless of whether evidence has been led before the Magistrate at the pre-summoning stage, either by affidavit or by oral statement, the Complaint will be maintainable only at the place where the cheque stands dishonoured. To obviate and eradicate any legal complications, the category of Complaint cases where proceedings have gone to the stage of Section 145(2) or beyond shall be deemed to have been transferred by us from the Court ordinarily possessing territorial jurisdiction, as now clarified, to the Court where it is presently pending. All other Complaints (obviously including those where the accused/respondent has not been properly served) shall be returned to the Complainant for filing in the proper Court, in consonance with our exposition of the law. If such Complaints are filed/refiled within thirty days of their return, they shall be deemed to have been filed within the time prescribed by law, unless the initial or prior filing was itself time barred." Upon hearing learned counsel for the parties and perusal of record, I find that the copy of order sheet of criminal complaint case no.6321 of 2013 of the Court of Special Magistrate, Gwalior as well as the copy of order sheet of criminal complaint case no.17 of 2015 of the Court of A.C.J.M., Agra shows that the complaint filed at Gwalior has not been transferred by the Court to Agra, rather it was returned for proper presentation before the competent court at Agra and opposite party no.1 after getting the complaint returned back from the Gwalior Court on 16.12.2014, has filed the same before the A.C.J.M., Agra on 12.1.2015, well within the required period of one month. It is surprising that on the date of filing and registering it as complaint case no.17 of 2015, it was mentioned in order sheet that complaint case has been received by transfer and without even recording the statement of complainant under section 200 Cr.P.C. and his witnesses under section 202 Cr.P.C. and without considering that there is sufficient material to issue process and summon opposite party Smt. Sunita Tripathi, it ordered to issue process in view of earlier orders meaning thereby, the earlier summoning order passed by the Magistrate at Gwalior, and thereafter without holding the service of summons sufficient as ordered, also passed order to issue non-bailable warrant against applicant on 15.4.2015. I find that when opposite party no.2 got the complaint under section 138 N.I. act returned back from the court of Magistrate at Gwalior and presented the same before the Magistrate at Agra, the Magistrate concerned was required to proceed in accordance with law Chapter XV of Cr.P.C. contains the procedure to be followed by the Magistrate upon receipt of complaint. As per procedure contemplated by law under Chapter XV of Cr.P.C., the Magistrate is required to examine and record the statement of the complainant and his witnesses and after considering the statements on oath if the Magistrate is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint as contemplated under section 203 Cr.P.C. and if he is of the opinion that there is sufficient ground for taking cognizance and proceeding, he shall issue process to summon the accused. Had it been a case, where the accused had put in appearance before the Magistrate at Gwalior and recording of evidence had commenced as envisaged in section 145(2) of N.I. Act, 1881, the position would have been different. However, since the complaint was presented before the Magistrate after getting it returned back from the court of Magistrate at Gwalior, the Magistrate at Agra was not competent to issue process or non bailable warrant without following the procedure as contemplated under Chapter XV of Cr.P.C. In view of discussions made above, I am of the considered view that the learned Magistrate at Agra has not acted correctly and has failed to follow due procedure as prescribed under law, and as contemplated under provisions of Chapter XV of Cr.P.C. It is also pertinent to mention that without sufficient service of summons, issuing under section 204 Cr.P.C. by the Magistrate, it may not be justified for him to issue non bailable warrants and so the order issuing process of non bailable warrant dated 15.4.2015, wrong and illegal and is liable to be quashed. However, in view of the facts on record as discussed above, I find that though the impugned order dated 15.4.2015, issuing non bailable warrant is liable to be quashed in order to prevent abuse of process of court and to secure the ends of justice, but there is no sufficient ground for quashing the entire proceedings of complaint case filed under section 138 N.I. Act for want of following procedure, as contemplated under provisions of chapter XV of Cr.P.C. and in order to meet the ends of justice, after hearing the impugned order dated 15.4.2015, the Magistrate may be given an opportunity to follow the procedure prescribed by law as observed herein before. The application is decided accordingly and the order dated 15.4.2015 issuing non bailable warrant against the applicant is quashed. The Magistrate concerned at Agra is directed to decide the complaint case in accordance with law after following the procedure as contemplated in Chapter XV of Cr.P.C. for a complaint case and to pass a reasoned order in accordance with law, after recording the statements of complainant and his witnesses under sections 200 and 202 Cr.P.C. and considering the material on record. Following the procedure, the Magistrate shall pass necessary orders in complaint case as early as possible within three months of the production of copy of this order before him. It is made clear that no observation on merits has been made by this Court and if any observation has come up, the same shall not adversely affect any of the parties. The writ petition is disposed of accordingly.