Research › Search › Judgment

Gujarat High Court · body

2025 DIGILAW 36 (GUJ)

Kuntalbhai Padamkumar Vyas v. State of Gujarat

2025-01-24

DIVYESH A.JOSHI

body2025
JUDGMENT : DIVYESH A. JOSHI, J. 1. Rule. Learned APP, Mr. Manan Mehta for respondent no.1 – State of Gujarat and learned advocate, Mr. Digvijay Singh Bisht for learned advocate, Mr. Bhunesh Rupera for respondent no.2 – original complainant waive service of notice of rule. 2. By way of preferring present application under Articles 226 and 227 of the Constitution of India as well as under Section 482 of the Code of Criminal Procedure, 1973 (“CrPC” for short”), the applicant has prayed for quashment of impugned proceedings being Criminal Case No.1001/2015 and the order passed thereon by the learned Additional Chief Metropolitan Magistrate, Court No.35, Ahmedabad qua the applicant. 3. Heard learned advocate, Mr. Tatvdeep Jani for the applicant, learned APP Mr. Manan Mehta for the respondent no.1 – State of Gujarat and learned advocate, Mr. Digvijay Singh Bisht for learned advocate, Mr. Bhunesh Rupera for respondent no.2 – original complainant. 4. Learned advocate submitted that the facts of the present case are that the applicant had taken loan from the respondent no.2 – Finance Company viz., TATA Capital Financial Services Ltd. and as a part of contract, the applicant had issued cheques in favour of the respondent no.2 for the repayment of the loan amount, however one of the cheques being Cheque No.001039 drawn on HDFC Bank, Bhavnagar Branch for an amount of Rs.1,00,342/- issued by the applicant in favour of the respondent no.2 was returned unpaid when it was deposited with an endorsement “banker stopped payment”, which led to filing of the impugned complaint by the authorized officer of the respondent no.2 – Bank, wherein summons has been issued upon the applicant. 5. Learned advocate submitted that in fact, the applicant is residing at Bhavnagar and the office of the respondent no.2 is situated at Ahmedabad and the cheque issued by the applicant is of the bank situated at Bhavnagar and the impugned complaint is filed before the court of learned Metropolitan Magistrate, Ahmedabad on 11.08.2015 and on the very same day i.e. on 11.08.2015, the learned Magistrate issued summons upon the accused, which clearly goes on to shows that while issuing summons under Section 202 of the CrPC, the learned Magistrate concerned has not conducted inquiry as contemplated under Section 202 of the CrPC, which is mandatory requirement under the law. Learned advocate further submitted that even in the present case, the original complainant has not supplied his sworn affidavit along with the impugned complaint and the said aspect has not been considered by the learned Magistrate while issuing summons. Learned advocate has referred to the authorization letter dated 03.09.2013 issued by the respondent – Bank in favour of one Rajendra Parikh, who is Collection Manager of the Company for the functioning in the territory of Surat, Vapi and Baruch in the State of Gujarat to initiate appropriate civil and/or criminal litigation on behalf of the respondent – Bank and submitted that only for three districts, sanction has been given to Mr. Rajendra Parikh for initiation of legal action and not for the Ahmedabad and despite that, the impugned complaint has been filed before the court at Ahmedabad, therefore, the impugned complaint is without jurisdiction and the learned Magistrate ought to have undertaken process under Section 202 of the CrPC before issuance of summons but in the facts of the present case, the said procedure is admittedly missing. 6. At this stage, learned advocate has placed reliance upon the decision of the Constitution Bench in case of In Re. : Expeditious Trial of Cases under Section 139 of N.I. Act, 1881 , reported in (2021) 16 SCC 116 and submitted that the case of the applicant is squarely covered by the said decision of the Constitution Bench, wherein the Constitution Bench has issued certain guidelines in such matters falling under Section 138 of the NI Act and the procedure to be adopted before issuance of summons. He has also placed reliance upon the decision of the Hon’ble Supreme Court in case of Vishwakalyan Multistate Credit Co.Op. Society Ltd. Vs. Oneup Entertainment Pvt. Ltd. , reported in (2023) 4 CivCC 364 and submitted that relying upon the decision of the Constitution Bench, the Hon’ble Supreme Court has modified the order of issuance of summons and directed the learned Magistrate concerned to proceed from the state of Section 202 of the CrPC. 7. At this stage, learned advocate submitted that considering the principle of law laid down by the Hon’ble Apex Court in case of State of Haryana Vs. Bhajan Lal , reported in AIR 1992 SC 604 as well as in case of R.P. Kapur Vs. 7. At this stage, learned advocate submitted that considering the principle of law laid down by the Hon’ble Apex Court in case of State of Haryana Vs. Bhajan Lal , reported in AIR 1992 SC 604 as well as in case of R.P. Kapur Vs. State of Punjab , reported in AIR 1960 SC 866 : 1960 Cri LJ 1239, the prosecution launched against the applicant is required to be quashed and set aside. 8. On the other hand, learned advocate, Mr. Digvijaysing Bisht appearing for the respondent no.2 – original complainant has opposed the present application with a vehemence and submitted that while passing order of issuance of summons, the learned Magistrate has not committed any illegality and/or irregularity, which requires interference at the hands of this Hon’ble Court. He submitted that the applicant had availed loan from the respondent no.2 – Bank and towards the repayment, cheques were issued, therefore, cheque was deposited in the account, which was returned unpaid with an endorsement “drawer stopped payment”, therefore, legal notice was issued to the applicant and, thereafter as the payment was not made, the impugned complaint has been filed, wherein after considering the facts of the case and appreciating the material accompanied with the impugned complaint, the learned Magistrate issued summons by an order, which cannot be said to be erroneous and/or illegal. Learned advocate, therefore, urged that no discretion may be exercised in favour of the applicant and the present application may be rejected. 9. Learned APP Mr. Mehta appearing for the respondent – State of Gujarat has also opposed the present application by contending that there is no illegality committed by the learned Magistrate while issuing summons upon the applicant, which does not require any interference at this stage. He, however, submitted that he adopts the submissions canvassed by learned advocate for the original complainant. It is, therefore, urged that the present application may be rejected. 10. Having heard learned advocates appearing for the parties and having gone through the material available on record, it is undisputedly emerging from the record that the applicant had availed loan facility from the respondent no.2 – Bank and for the repayment of the said loan amount, cheques were issued, however one of the cheques issued by the applicant was dishonoured, which resulted into issuance of legal notice and subsequently filing of the impugned complaint. But it is not in dispute that the impugned complaint filed by the respondent no.2 does not accompany the sworn affidavit of the respondent no.2 herein. Over and above that, the impugned complaint is filed on 11.08.2015 and as per the provision of Section 202 of the CrPC, the learned Magistrate concerned ought to have carried out inquiry before issuance of process as the applicant is residing at Bhavnagar, however in the facts of the present case, admittedly, no inquiry as contemplated under Section 202 of the CrPC has been carried out and straightway, order of summons has been issued upon the applicant, which can be said to be in contravention of the provision of Section 202 of the CrPC in view of the guidelines laid down by the Constitution Bench in case of In Re. : Expeditious Trial of Cases under Section 139 of N.I. Act, 1881 (supra), wherein the Constitution Bench has issued certain guidelines to undertake by the Magistrate concerned at the time of considering the complaint under Section 138 of the NI Act. 11. The primary contention raised on behalf of applicant is that the learned Magistrate had failed to carry out inquiry as per Section 202 CrPC. To appreciate this contention, Sections 200 and 202 of CrPC is reproduced herein under:- " Section 200 . Examination of complainant.- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses- (a) if a public servant acting or- purporting to act in the discharge of his official duties or a court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re- examine them." Section 202 . Postponement of issue of process. 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. (2) In an inquiry under sub- section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub- section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer- in- charge of a police station except the power to arrest without warrant." 12. Thus from the above section, it is found out that Section 202 of the CrPC confers jurisdiction on the Magistrate to conduct an inquiry for the purpose of deciding whether sufficient grounds justifying the issue of process are made out. Further, the amendment to Section 202 of the CrPC with effect from 23.06.2006, vide Act 25 of 2005, made it mandatory for the Magistrate to conduct an inquiry before issue of process, in a case where the accused resides beyond the area of jurisdiction of the court and admittedly in the present case, the applicant – accused is residing at Bhavnagar, which is evident from the cause title of this application. Not only that, even the cause title of the impugned complaint reflects the address of the applicant as Bhavnagar and the notice issued by the respondent no.2 herein through advocate to the applicant after dishonour of the cheque also shows that the said notice was issued at Bhavnagar. It is required to be mentioned that while deciding identical cases by the different High Courts, there has been a divergence of opinion amongst the High Courts relating to the applicability of Section 202 of the CrPC in respect of complaints filed under Section 138 of the NI Act. However in some cases filed under Section 138 of the NI Act, some High Courts have been decided that it is mandatory for the Magistrate to conduct an inquiry, as provided in Section 202 of the Code, before issuance of process in complaints filed under Section 138 of the NI Act, whereas in some cases, contrary view has been taken by some High Courts. All those cases having different view have reached upto the Hon’ble Supreme Court and in pursuance thereto, a Five Judges Bench was constituted to consider the said issue and the said Constitution Bench of the Hon’ble Supreme Court in a decision in case of In Re. : Expeditious Trial of Cases under Section 139 of N.I. Act, 1881 (supra), upon which reliance has been placed by learned advocate for the applicant has considered the said issue and issued following guidelines in Paragraph No.24, which read as under, “24. The upshot of the above discussion leads us to the following conclusions: 1) The High Courts are requested to issue practice directions to the Magistrates to record reasons before converting trial of complaints under Section 138 of the Act from summary trial to summons trial. 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. 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. 4) We recommend that suitable amendments be made to the Act for provision of one trial against a person for multiple offences under Section 138 of the Act committed within a period of 12 months, notwithstanding the restriction in Section 219 of the Code. 5) The High Courts are requested to issue practice directions to the Trial Courts to treat service of summons in one complaint under Section 138 forming part of a transaction, as deemed service in respect of all the complaints filed before the same court relating to dishonour of cheques issued as part of the said transaction. 6) Judgments of this Court in Adalat Prasad (supra) and Subramanium Sethuraman (supra) have interpreted the law correctly and we reiterate that there is no inherent power of Trial Courts to review or recall the issue of summons. This does not affect the power of the Trial Court under Section 322 of the Code to revisit the order of issue of process in case it is brought to the court's notice that it lacks jurisdiction to try the complaint. 7) Section 258 of the Code is not applicable to complaints under Section 138 of the Act and findings to the contrary in Meters and Instruments (supra) do not lay down correct law. To conclusively deal with this aspect, amendment to the Act empowering the Trial Courts to reconsider/recall summons in respect of complaints under Section 138 shall be considered by the Committee constituted by an order of this Court dated 10.03.2021. 8) All other points, which have been raised by the Amici Curiae in their preliminary report and written submissions and not considered herein, shall be the subject matter of deliberation by the aforementioned Committee. Any other issue relating to expeditious disposal of complaints under Section 138 of the Act shall also be considered by the Committee.” 13. 8) All other points, which have been raised by the Amici Curiae in their preliminary report and written submissions and not considered herein, shall be the subject matter of deliberation by the aforementioned Committee. Any other issue relating to expeditious disposal of complaints under Section 138 of the Act shall also be considered by the Committee.” 13. Thus from the above decision, it is found out that in cases filed under Section 138 of the NI Act, directions have been issued to all the High Courts to record reasons before converting the trial of the complaints under Section 138 of the NI Act from summary trial to summons trial and inquiry shall be conducted on receipt of the complaints under the NI Act accompanying with sworn affidavit to arrive at sufficient grounds to proceed against the accused when the accused resides beyond the territorial jurisdiction of the Court. Thus in the facts of the present case, as discussed above, the applicant is resident of Bhavnagar district and documents in that regard are produced on record by the applicant, therefore, it was necessary for the learned Magistrate concerned to conduct inquiry under Section 202 of the CrPC, which in the facts of the present case, is missing. Therefore in view of the decision of the Constitution Bench, the present application deserves to be allowed issuing appropriate direction. 14. In view of the above facts of the case, this petition stands allowed partly and the impugned order dated 11.08.2015 passed by the learned Additional Chief Metropolitan Magistrate, Negotiable Instrument Act Court No.35, Ahmedabad in Criminal Case No.1001/2015 issuing process upon the applicant is hereby quashed and set aside and the learned Magistrate is hereby directed to proceed from the stage of Section 202 of the CrPC taking into consideration the directions issued by the Constitution Bench and such inquiry shall be conducted as expeditiously as possible. 15. Rule is made absolute to the aforesaid extent. Direct service is permitted.