Point of Law : Postponement of issue of process - The dictum is when Magistrate holds inquiry himself, it is not compulsory that he should examine The witnesses and in suitable cases Magistrate can examine documents for satisfaction as to sufficiency of grounds for proceedings under Section 202.

JUDGMENT :

1. Rule.

2. Rule made returnable forthwith. Heard, finally with the consent of the parties.

3. This application under Section 482 of the Code of Criminal Procedure, 1973 (Code for short) challenges the order dated 23rd October, 2019 in Criminal Revision Application No.79/2019 passed by the Court of Sessions Judge, Thane.

4. Facts essential for decision of this application, are as follows;

Applicant is a partnership firm engaged in the business of trading and supplying of metal products from its office at Thane. Respondent No.1 is also a partnership firm engaged in the business of manufacturing of sheet metal pressed components, of which Respondent Nos. 2 to 4 are partners. The Applicant and the Respondent No.1 had business dealings since 2013, over the years. Respondent No.1 through Respondent Nos. 2 to 4, received the goods sold by the Applicants’ firm and acknowledged receipt of the same. As on 17th October, 2018, a sum of Rs. 26,68,206/- was due to the Applicants by the Respondent No.1 towards goods sold and delivered to them. Subsequently in discharge of said dues, Respondent No.1 issued a cheque dated 25th September, 2018, in a sum of Rs. 25,47,982/-in favour of the Applicant. The cheque was returned unpaid. After which, notices were exchanged, followed by complaint bearing S.C.C. No.10767/2018, filed in the Court of Magistrate at Thane under Section 138 read with 141 of the Negotiable Instruments Act, 1881 (Act for short). Pursuant to complaint and upon verification, statement of the Applicant being recorded on 22nd November, 2018, learned Magistrate issued process on 16th January, 2019. This order reads as under;

ORDER BELOW EXH. IN S.C.C. NO.10767/2018

(1) I have personally verified the complainant through Aadhar Card. On perusal of the complaint, documents filed along with it and after taking into consideration the statement of the complainant on oath and hearing learned advocate of the complainant at length. I am satisfied that there is sufficient ground for proceeding against the accused. Hence, the order.

ORDER :

Issue process against the accused for the offence punishable under Section 138 r/w 141 of N.I. Act returnable on 30/01/2019.

5. The Respondent Nos. 1 to 4 challenged the order, issue process in Criminal Revision Application No. 79/2019 before the learned Sessions Court at Thane.

6. The learned Sessions Court vide order 23rd September, 2019 allowed the revision and set aside the order issue process on the following grounds;

(i) At the material time, when the complaint was filed, Complainant-firm was unregistered partnership firm and therefore complaint was not maintainable under Section 69(2) of the Indian Partnership Act, 1932.

(ii) At the material time, when the process was issued, accused were residing at a place beyond the area in which he exercises his jurisdiction and therefore ought to have postponed the issue of process and further, either inquired into the case himself or direct the 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 was sufficient ground for proceeding.

(iii) The issue process order was passed without examining the complaint upon oath, by simply relying on the verification below the complaint.

(iv) When the statutory notice issued by the complainant-firm, was replied it was informed to the Complainant that accused no. 4 – Ms. Sunita Mukund Burkule was no way concerned with the partnership firm, nor was responsible for day to day transaction of the partnership firm. In spite of this fact, Ms. Sunita Burkule was arraigned as an accused and order issue process was passed mechanically by the learned Magistrate.

7. Heard. Mr. Karl Rustomkhan for the Applicant; Mr. Gite for Respondent No.2; Ms. Gadkari for Respondent No.3 and Mr. Hulke, learned APP for State.

8. Unregistered Partnership – maintainability of complaint under Section 138 of the N.I. Act:

Whether prosecution under Section 138 of the Act is hit by