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CALCUTTA HIGH COURT
Bibek Chaudhuri, J.
Pawan Kumar Agarwal – Petitioner
versus
State of West Bengal and Anr. – Complainants
CRR 1956 of 2013 with CRR 1957 of 2013 with CRR 1958 of 2013 with CRR 2010 of 2013 with CRR 2592 of 2013 with CRR 2593 of 2013 with CRR 2865 of 2013 with CRR 3157 of 2013 with CRR 3158 of 2013
Decided on 12.9.2023
Negotiable Instruments Act, 1881 – Section 138 read with Section 141 – Criminal Procedure Code, 1973 – Section 202 – Dishonour of cheque – Offences by companies – Issuance of process – Necessity of prior enquiry – Petitioner was arraigned as an accused on the ground that he at relevant point of time was Managing Director of company – In petition of complaint it was not stated that petitioner resides outside jurisdiction of Magistrate – While issuing process Magistrate adverted to petition of complaint, evidence of complainant affirmed under Section 145(1) of N.I Act and documents filed by complainant – Before issuance of process, Magistrate came to conclusion that there are prima facie reasons to issue process against petitioner – If impugned order prima facie proves application of mind by Magistrate in respect of compliance of mandatory provision under Section 202 of Cr.P.C, order cannot be set aside only on technical ground for absence of magic words that inquiry under Section 202 was held and Magistrate was satisfied that process should be issued against accused – Revisional Applications set aside. (Paras 29 and 30)
Result: Revisional Applications set aside.
JUDGMENT
Bibek Chaudhuri, J.—These bunches of criminal revisions have been assigned by the Hon’ble Chief Justice for determination of a common question as to whether an inquiry under Section 202 of the Code of Criminal Procedure is mandatory before issuance of process in a complaint under Section 138 read with Section 141 of the Negotiable Instruments Act when the accused resides outside the territorial jurisdiction of the learned Chief Judicial Magistrate at Kolkata.
2. The following are the facts of the case:-
C/22365/2011
3. The opposite party No.2 as complainant filed a complaint under Section 138/141 of the Negotiable Instruments Act alleging, inter alia, that in discharge of existing date and liability the accused No.2 to 4 issued two account payee cheques being No.045737 dated 1st June, 2011 and 045738 dated 16th June, 2011 for Rs. 65 lakhs each, total being Rs.1,30,00,000/- drawn on Punjab and Sind Bank, 8 Old Court House Street, Kol-700001. The complainant/company deposited the said cheques to its banker within its validity period on 21st June, 2011. However, the said cheques were dishonoured on the ground that payments were stopped by the drawer. Dishonour of cheque was followed by a demand notice issued by the complainant/company requiring the petitioner and others to repay the cheque amount within statutory period of time. As the accused persons failed to make payment of the said sum, the petitioner/company lodged the aforesaid complaint before the learned Chief Metropolitan Magistrate, Kolkata. The Chief Metropolitan Magistrate transferred the case to the Metropolitan Magistrate, 16th Court, Kolkata who issued process against the accused persons under Section 200 of the Cr.P.C without making any inquiry under Section 202 of the Cr.P.C though the petitioner is a permanent resident of Ahmedabad in the State of Gujarat.
C/35317/2010
4. The opposite party No.2 as complainant filed a complaint under Section 138/141 of the Negotiable Instruments Act alleging, inter alia, that in discharge of existing date and liability the accused No.2 to 4 issued two account payee cheque being No.045720 dated 22nd September, 2010 for Rs. 65 lakhs drawn on Punjab and Sind Bank, 8 Old Court House Street, Kol-700001. The complainant/company deposited the said cheques to its banker within its validity period on 27th September, 2010. However, the said cheques were dishonoured on the ground that payments were stopped by the drawer. Dishonour of cheque was followed by a demand notice issued by the complainant/company requiring the petitioner and others to repay the cheque amount within statutory period of time. As the accused persons failed to make payment of the said sum, the petitioner/company lodged the aforesaid complaint before the learned Chief Metropolitan Magistrate, Kolkata. The Chief Metropolitan Magistrate transferred the case to the Metropolitan Magistrate, 16th Court, Kolkata who issued process against the accused persons under Section 200 of the Cr.P.C without making any inquiry under Section 202 of the Cr.P.C though the petitioner is a permanent resident of Ahmedabad in the State of Gujarat.
C/7331/2012
5. The opposite party No.2 as complainant filed a complaint under Section 138/141 of the Negotiable Instruments Act alleging, inter alia, that in discharge of existing date and liability the accused No.2 to 4 issued account payee cheque being No.045754 dated 31.01.2012 for Rs.49,88,360/- drawn on Punjab and Sind Bank, 8 Old Court House Street, Kol-700001. The complainant/company deposited the said cheques to its banker within its validity period on 23.02.2012. However, the said cheques were dishonoured on the ground that payments were stopped by the drawer. Dishonour of cheque was followed by a demand notice issued by the complainant/company requiring the petitioner and others to repay the cheque amount within statutory period of time. As the accused persons failed to make payment of the said sum, the petitioner/company
The court established that the issuance of a cheque, even if post-dated or issued as security, can constitute a legally enforceable debt under Sec. 138 of the N.I. Act, and that the inquiry under Sec....
(1) Dishonour of cheque – A post-dated cheque issued after debt has been incurred would be covered by definition of ‘debt’ – However, if sum payable depends on a contingent event, then it takes colou....
The court cannot inquire into the reliability of the allegations in summary proceedings and no further inquiry is necessary if the summoning order demonstrates prima facie findings.
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 e....
Issuance of summons without conducting inquiry under Section 202 of the Cr.P.C. is impermissible, making the cognizance under Section 138 of the N.I. Act unsustainable.
An inquiry under Section 202 of the CrPC is mandatory before issuing summons to an accused residing outside the Magistrate's jurisdiction in cases under Section 138 of the NI Act.
For summoning under Section 138 of the NI Act, recording of statements under Sections 200 and 202 Cr.P.C. is not required, and the evidence of the complainant may be given by affidavit as per Section....
In the absence of any averment contained in the complaint, continuation of the impugned proceedings against the petitioners, who are residing at far away places, would be oppressive and abuse of proc....
In cases under Section 138 of the Negotiable Instruments Act, the evidence of witnesses on behalf of the complainant shall be permitted on affidavit, and the sufficiency of grounds for proceeding und....
The main legal point established is the mandatory nature of compliance with Section 202 of the Code of Criminal Procedure before issuing summons to an alleged offender residing outside the Magistrate....
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