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2025 DIGILAW 1208 (MAD)

Karthiga v. R. Mariappan (Died)

2025-02-28

K.MURALI SHANKAR

body2025
ORDER : The Criminal Revision is directed against the order dated 27.09.2022 taking cognizance in C.C.No.1009 of 2022 for the offence under Section 138 of Negotiable Instruments Act. 2. It is evident from the records that the deceased respondent/ complainant has filed a private complaint under Section 200 Cr.P.C. against the petitioner/accused for the offences under Sections 138 r/w 142 of Negotiable Instruments Act and the learned Magistrate has passed the impugned order taking cognizance of the case. After filing of the complaint, since the complainant died, his wife got herself impleaded as complainant and proceeded with the same. 3. The case of the complainant is that the petitioner, in order to meet out her urgent family expenses, borrowed a sum of Rs.25,00,000/- on 24.11.2021 and executed a promissory note in favour of the complainant on the same day itself agreeing to repay the same within six months with interest at 12% per annum on demand, that the petitioner has not repaid any amount to the complainant despite repeated requests and lastly, after the complainant's frequent efforts, the petitioner issued a cheque for sum of Rs.25,00,000/- drawn on Indian Overseas Bank, Palayam Branch, Dindigul, that when the cheque was presented for collection through the complainant's banker Indian Overseas Bank, Trichy Main Branch, the same came to be returned on the ground that no amount was available in the Bank account, that the complainant has then sent a legal notice dated 31.05.2022 demanding the payment of cheque amount, that the petitioner having received the notice on 07.06.2022 failed to make payment within 15 days of the receipt thereof and that therefore, the complainant was constrained to lodge the private complaint. 4. The learned counsel appearing for the petitioner would mainly contend that since the petitioner is residing beyond the territorial jurisdiction of the Court which took cognizance of the case, the learned Magistrate ought to have postponed of issue of process and conducted enquiry under Section 202 Cr.P.C., that the learned Magistrate must have conducted enquiry under Section 202 Cr.P.C. before taking cognizance and sending process against the petitioner, that enquiry under Section 202 Cr.P.C. before taking cognizance is mandatory and that the learned Magistrate, without conducting any enquiry under Section 202 Cr.P.C., has mechanically taken cognizance of the case and issued the process and hence, proceedings of the learned Magistrate suffers from the vice of non-application of mind in law. 5. The learned counsel appearing for the petitioner would rely on the judgment of the Constitution of the Hon'ble Supreme Court in In Re: Expeditious Trial of Cases under Section 138 of N.I. Act 1881 reported in 2021 SCC OnLine SC 325 and the decision of the Hon'ble Supreme Court in Sunil Todi and Others Vs. State of Gujarat and Another reported in (2022) 16 SCC 762 . 6. The learned counsel appearing for the petitioner would rely on the conclusions arrived at by the Constitution Bench in Serial Nos.2 and 3, which are extracted hereunder:- “24. ... 2) Inquiry shall be conducted on receipt of complaints under Section 138 of the Act to arrive at sufficient grounds to proceed against the accused, when such accused resides beyond the territorial jurisdiction of the court. 3) For the conduct of inquiry under Section 202 of the Code, evidence of witnesses on behalf of the complainant shall be permitted to be taken on affidavit. In suitable cases, the Magistrate can restrict the inquiry to examination of documents without insisting for examination of witnesses.” 7. In Sunil Todi's case, the Hon'ble Supreme Court, by referring to the decision of the Constitution Bench, has observed, “38. Section 145 of the NI Act provides that evidence of the complainant may be given by him on affidavit, which shall be read in evidence in an inquiry, trial or other proceeding notwithstanding anything contained in the CrPC. The Constitution Bench held that Section 145 has been inserted in the Act, with effect from 2003 with the laudable object of speeding up trials in complaints filed under Section 138. Hence, the Court noted that if the evidence of the complainant may be given by him on affidavit, there is no reason for insisting on the evidence of the witnesses to be taken on oath. Consequently, it was held that Section 202(2) CrPC is inapplicable to complaints under Section 138 in respect of the examination of witnesses on oath. The Court held that the evidence of witnesses on behalf of the complainant shall be permitted on affidavit. If the Magistrate holds an inquiry himself, it is not compulsory that he should examine witnesses and in suitable cases the Magistrate can examine documents to be satisfied that there are sufficient grounds for proceeding under Section 202.” 8. The Court held that the evidence of witnesses on behalf of the complainant shall be permitted on affidavit. If the Magistrate holds an inquiry himself, it is not compulsory that he should examine witnesses and in suitable cases the Magistrate can examine documents to be satisfied that there are sufficient grounds for proceeding under Section 202.” 8. In the case on hand, admittedly, the petitioner is residing at Dindigul District and the complaint under Section 138 of Negotiable Instruments Act came to be filed before the Magistrate Court at Trichy and the case was taken cognizance. 9. Section 202(1) Cr.P.C. deals with postponement of issue of process which contemplates that any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance and in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, shall 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 for the purpose of deciding whether or not there is sufficient ground for proceeding. 10. It is pertinent to mention that the words 'and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction' came to be inserted by Section 19 of the Code of Criminal Procedure (Amendment) Act (Central Act 25 of 2005). 11. The Hon'ble Supreme Court in Vijay Dhanuka and others Vs. Najima Mamtaj and others reported in (2014) 14 SCC 638 has categorically held that enquiry by the Magistrate before taking cognizance is mandatory. 12. The learned counsel appearing for the petitioner, by relying the above legal position, would contend that the learned Magistrate has nowhere whispered that enquiry under Section 202 Cr.P.C. was conducted and that since enquiry under Section 202 Cr.P.C. is mandatory, the non- compliance would vitiate the order taking cognizance. 13. No doubt, as rightly pointed out by the learned counsel appearing for the petitioner, in the impugned order taking cognizance there is no reference to any enquiry under Section 202 Cr.P.C., but the petitioner has not produced the B-Diary extract to show what had happened before taking cognizance. 14. 13. No doubt, as rightly pointed out by the learned counsel appearing for the petitioner, in the impugned order taking cognizance there is no reference to any enquiry under Section 202 Cr.P.C., but the petitioner has not produced the B-Diary extract to show what had happened before taking cognizance. 14. As rightly contended by the learned counsel appearing for the respondent, the learned Magistrate, in the impugned order itself, has recorded his satisfaction about the existence of prima facie case against the petitioner for the offence under Section 138 of Negotiable Instruments Act. 15. No doubt, the learned Magistrate is duty bound to apply his mind to the allegations in the complaint together with the statements which are recorded in the enquiry while determining whether there is a prima facie case sufficient ground for proceeding. To put it in other way, there must be an application of mind by the Magistrate to whether the allegations in the complaint together with the statements recorded or the enquiry conducted constitute an offence. 16. At this juncture, it is necessary to refer the conclusions of the Constitution Bench of the Hon'ble Supreme Court in Serial No.3, wherein, it has been held that the Magistrate in suitable cases can restrict the inquiry to examination of documents without insisting for examination of witnesses. Moreover, it has also been stated that in inquiry under Section 202 Cr.P.C., evidence of witnesses on behalf of the complainant shall be permitted to be taken on affidavit. 17. In the case on hand, it is evident from the records that the complainant has filed his proof affidavit and the learned Magistrate has received the proof affidavit and marked the documents under Ex.P1 to Ex.P5 and after perusing the entire case records and the documents, has recorded his satisfaction that prima facie offence under Section 138 of Negotiable Instruments Act was made out against the petitioner. 18. It is necessary to refer the impugned order hereunder for better appreciation:- “Complainant present. As per the dictum laid down in Indian Bank Association case {2014 (2) SCC (Cri) 652} in Para.18 and as directed in the latest dictum in In Re expeditious trial cases under Section 138 Act in AIR 2021 SC 1957 , the complainant had let in his pre cognizance evidence in the form of proof affidavit and had marked the documents. The proof affidavit was received an the exhibits Ex.P1 to P5 were marked. On the perusal of the entire case records and the exhibits, the prima facie offence under sec.138 of the Negotiable Instruments Act was made out against the arrayed accused as the ingredients under sec.138(a), (b), (c) were satisfied on record. Hence, this court takes cognizance of the offence against the arrayed accused for the offence under sec.138 N.I.Act to be tried as per Summary Trial procedure as mandated under Sec.143 N.I Act. Issue summons to the accused through R.P.A.D and the complainant is directed to take process to get the summons served along with the copy of the complaint. Call on 29.11.2022.” 19. Though the learned Magistrate has not specifically stated that enquiry under Section 202 Cr.P.C. was conducted, it is evident that he conducted enquiry, wherein, he received the proof affidavit of the complainant and marked the documents produced by the complainant and on considering the entire records, has proceeded to take cognizance. Just because the words “enquiry under Section 202 Cr.P.C.” is not mentioned anywhere, that by itself is not sufficient to hold that the entire proceedings stand vitiated, more particularly, when the learned Magistrate, after considering the entire materials available on records, has recorded his satisfaction that there existed prima facie case to proceed against the petitioner. Except the above, the petitioner has not canvassed any other valid reason or ground to impugn the order taking cognizance. 20. Considering the above, this Court concludes that the impugned order taking cognizance cannot be found fault with. Consequently, this Court concludes that the revision is devoid of merit and the same is liable to be dismissed. 21. In the result, this Criminal Revision Petition is dismissed. Consequently, connected Miscellaneous Petition is closed. No costs.