2013 Supreme(SC) 1066

SUPREME COURT OF INDIA
SUDHANSU JYOTI MUKHOPADHAYA, V. GOPALA GOWDA, JJ.
DEVENDRA KISHANLAL DAGALIA – APPELLANT
VERUS
DWARKESH DIAMONDS PVT. LTD. AND ORS. – RESPONDENTS
CRIMINAL APPEAL NOS. 1997-1998 OF 2013 (arising out of SLP(Crl.)Nos.2595-2596 of 2013)
Decided On : 25-11-2013

Headnote:(A) Criminal Procedure Code, 1973—Sections 201 and 204 read with Section 362—Issuance of summons—Review of order—Magistrate is required to issue summons for attendance of accused only on examination of complaint and on satisfaction that there is sufficient ground for taking cognizance of offence and that it is competent to take such cognizance of offence—Once decision is taken and summon is issued, in absence of a power of review including inherent power to do so, remedy lies before High Court under Section 482 Cr.P.C or under Article 227 of Constitution of India and not before Magistrate—Once Magistrate taking cognizance of an offence forms his opinion that there is sufficient ground for proceeding and issues summons under Section 204 Cr.P.C., there is no question of going back following procedure under Section 201 Cr.P.C.—In absence of any power of review or recall order of issuance of summons, Magistrate cannot recall summon in exercise of power under Section 201 Cr.P.C.

       Held: The aforesaid provisions make it clear that the Magistrate is required to issue summons for attendance of the accused only on examination of the complaint and on satisfaction that there is sufficient ground for taking cognizance of the offence and that it is competent to take such cognizance of offence. Once the decision is taken and summon is issued, in the absence of a power of review including inherent power to do so, remedy lies before the High Court under Section 482 Cr. P.C or under Article 227 of the Constitution of India and not before the Magistrate. Section 201 Cr.P.C., as noticed earlier, can be applied immediately on receipt of a complaint, if the Magistrate is not competent to take cognizance of the offence. Once the Magistrate taking cognizance of an offence forms his opinion that there is sufficient ground for proceeding and issues summons under Section 204 Cr.P.C., there is no question of going back following the procedure under Section 201 Cr.P.C. In absence of any power of review or recall the order of issuance of summons, the Magistrate cannot recall the summon in exercise of power under Section 201 Cr.P.C. The first question is thus answered in negative and in favour of the appellant.

        (B) Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Sections 201 and 204—Dishonour of cheque—Issuance of summons—Business dealing was held at Mumbai; products were supplied from Mumbai to New Delhi, cheques were handed over at Mumbai and cheques were dishonoured by bankers of respondents at New Delhi and legal notice was issued from Mumbai—At least one act out of five ingredients of Section 138 having committed at Mumbai, complaint preferred by complainant before Magistrate at Mumbai was maintainable.

       Held: The question concerning the jurisdiction of Magistrate to issue summons fell for consideration before this Court in M/s. Escorts Limited vs. Rama Mukherjee(Criminal Appeal No.1457 of 2013), 2013 (11) Scale 487. In the said case the Court noticed the earlier decision in K. Bhaskaran vs. Shankaran Vaidhyam Balan & Anr., (1999) 7 SCC 510. In the light of the language used in Section 138 of the Act, the Court found five components in Section 138 of the Act, namely,

        (1) drawing of the cheque;

        (2) presentation of the cheque to the bank;

        (3) returning the cheque unpaid by the drawee bank;

        (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount; and

        (5) failure of the drawer to make payment within 15 days of the receipt of the notice.”

       After saying so, this Court held that offence under Section 138 of the Act can be completed only with the concatenation of all the above components and for that it is not necessary that all the above five acts should have perpetrated at the same locality; it is possible that each of those five acts were done at five different localities, but a concatenation of all the above five is a sine qua non for the completion of the offence under Section 138 of the Act. Having noticed the aforesaid provisions, this court in Escorts Ltd.

       In the case in hand it is admitted that the business dealing was held at Mumbai; the products were supplied from Mumbai to New Delhi, cheques were handed over at Mumbai and the cheques were dishounoured by the bankers of respondents at New Delhi, and legal notice was issued from Mumbai. Thus, at least one act out of the five ingredients of Section 138 of the Act having committed at Mumbai, the complaint preferred by the complainant before the Magistrate at Mumbai was maintainable. The second question is thereby, answered in affirmative and in favour of the appellant.

       Result: Appeals allowed.