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SUPREME COURT OF INDIA
Sudhansu Hyoti Mukhopadhaya & V. Gopala Gowda, JJ.
Devendra Kishanlal Dagalia —Petitioners
versus
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
IMPORTANT POINT
In absence of any power of review or recall the order of issuance of summons, Magistrate cannot recall the summon in exercise of power under Section 201 Cr.P.C.
Headnote:Criminal Procedure Code, 1973—Sections 204, 201—Negotiable Instruments Act, 1881—Section 138—Complaint alleging dishonor of cheque—Whether the Magistrate after having found sufficient ground for proceeding in case and issued summons under Section 204 Cr.P.C. has the jurisdiction to recall or review the order by exercising its power under Section 201 Cr.P.C.— 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 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 High Court under Section 482 Cr. P.C or under Article 227 of the Constitution of India and not before Magistrate— 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, Magistrate cannot recall the summon in exercise of power under Section 201 Cr.P.C.—Appeals allowed. (Para 14)
(ii) Negotiable Instruments Act, 1881—Section 138— Complaint alleging dishonor of cheque —Whether the petition under Section 138 of the N.I. Act was maintainable at Mumbai on the ground that goods were supplied from Mumbai to Delhi and cheques were handed over at Mumbai and legal notice was issued from Mumbai—Held Instantly 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 held to be maintainable—Appeals allowed. (Paras 18 & 19)
Sudhansu Jyoti Mukhopadhaya, J.—Leave granted. These appeals have been preferred by the appellant- complainant against the judgment and order dated 6th December, 2012 passed by the High Court of Judicature at Bombay in Criminal Writ Petition Nos.3992 and 3993 of 2011. By the impugned judgment the High Court set aside the order passed by Sessions Judge in CRA No.301 of 2010 and upheld the order passed by the Special Metropolitan Magistrate.
2. The appellant filed complaints being CC No.3142/SS/2008 and CC No.3286/SS/2008 under Section 138 of Negotiable Instruments Act (hereinafter referred to as ‘the N.I. Act’) in the Court of the Special Metropolitan Magistrate at Small Causes Court on 28th July, 2008 and 18th August, 2008. Learned Metropolitan Magistrate after recording of the pre- summoning evidence issued summons on the accused under Section 204 Cr.P.C. The accused-respondents 1, 2 & 3 then filed application under Section 201 Cr.P.C. for return of complaint for want of jurisdiction. They alleged that the entire transaction took place at New Delhi and only the legal notice was issued from Mumbai and hence the learned Magistrate has no jurisdiction to try and entertain the complaint. A similar application was filed by the accused in CC No.3286/SS/2008. Thereafter, the learned Magistrate by order dated 5th January, 2010 allowed the application under Section 201 Cr.P.C. and returned the complaint for want of jurisdiction. A similar order was passed by the learned Magistrate in CC No.3286/SS/2008.
3. Being aggrieved, the appellant-complainant filed Criminal Revision Applications Nos.301 and 302 of 2010 before the Sessions Court, Greater Bombay. Learned Sessions Judge by the judgment and order dated 2nd November, 2011 allowed the criminal revision applications and set aside the orders of learned Magistrate and the matter was remitted back to the Magistrate. However, at the instance of Respondent Nos.1, 2 and 3 the order passed by the Sessions Judge was set aside by the High Court by the order impugned.
4. Learned counsel appearing on behalf of the appellant submitted that the Magistrate after finding sufficient ground for proceeding and after issuance of summons under Section 204 Cr.P.C., has no jurisdiction to recall or review the order by exercising power under Section 201 Cr.P.C. It is further contended that the High Court failed to consider the aforesaid fact and has no answer to the issue as was raised and decided by the learned Magistrate. Further, according to the learned counsel for the appellant, in the matter under Section 138 of the N.I.Act the appellant having been issued legal notice from Mumbai, the Magistrate has jurisdiction to try and entertain the complaint.
5. Per contra, according to the learned counsel for the respondents, the High Court of Bombay has taken due course and settled all the questions raised in the complaint filed by the appellant. The complaint filed by the appellant is silent with regard to place where (a) the order was given by the respondent; (b) goods were supplied; (c) the payment was agreed to be made: (d) the cheques in question were issued: (e) the cheques in question were dishonoured and (f) the parties to the petition intended to make and receive the same. It is accepted that the notice in question was issued from Mumbai. It is contended that issuance of notice would not by itself give rise to a cause of action for filing the complaint at Mumbai.
6. Further, according to the respondents the appellant has concealed the relevant facts purposefully, particularly the fact that the entire transaction had taken place at Delhi and, therefore, the Magistrate has returned the complaint under Section 201 Cr.P.C.
7. We have heard learned counsel for the parties and perused the record.
8. The main questions involved in the present case are :
(i) Whether the Magistrate after having found sufficient ground for proceeding in case and issued summons under Section 204 Cr.P.C. has the jurisdiction to r
