IMPORTANT POINT
When contours of offence and role of petitioner is prima facie established from complaint and documents and where Magistrate issues process, there is no reason for Magistrate to record in so many words that preliminary investigation is done.

Siddhartha Chattopadhyay, J. —The petitioners herein challenged the legal pregnability of the complaint case being case No. C-6705 of 2013 under Section 138 read with Section 141 of the N.I. Act by which a proceeding has been initiated against them. Since common question of fact and law are involved, both the revisional applications are taken up at a time.

2. According to the petitioner, the learned trial court has misjudged the legal position that before issuing any process against him, learned Magistrate ought to have made an enquiry under Section 202 (1) of Cr.P.C. (since amended).

3. Before I delve into the merit of the application, I deem it fit to cull-out the seminal facts from the record leading to the passing of the impugned order. The petition of complaint speaks that the petitioner is one of the directors and is associated with the day to day affairs of the company. The present petitioner had issued cheque in his official capacity and when that was presented before the bank concerned for encashment that was dishonoured. After complying with the usual legal formalities, the opposite party had filed an application under Section 200 of the Cr.P.C. before the learned Chief Metropolitan Magistrate. The learned Chief Metropolitan Magistrate, who after taking cognizance, transferred the case to the learned Metropolitan Magistrate 15th Court for enquiry and disposal according to law. The transferee court has examined the complainant on S/A under Section 200 of the Cr.P.C. He held that there is sufficient ground to proceed with the case against the accused under Section 138/141 of N.I. Act. Thereafter, he issued process which is the subject matter of the challenge in this revisional application.

4. At the very outset, learned Counsel appearing on behalf of the contended that there is no compliance of Section 202 (1) of Cr.P.C. (since amended). There is a gross mistake committed by the learned trial court and as a result the same is required to be quashed.

5. Before adverting to the rival submission of the parties it would be profitable to refer to Section 202 (1) of Cr.P.C. as amended.

Cr.P.C. (Amendment) Act, 2005 (25 of 2005).- In Section 202 of the principal Act, in sub-section (1), after the words “may, if he thinks fit,”, the following shall be inserted, namely:-

“and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction.”

(Emphasis supplied)

6. Our legislature in its wisdom certainly intended to incorporate the same keeping in view of the fact that sometimes only to satisfy personal vendetta some complaint cases are filed against some persons who have inimical terms with the complainant and reside outside the jurisdiction of a local court. In such a case, Magistrate must make an enquiry for his satisfaction about the prima facie substance of allegation. To ascertain the veracity of the case the Magistrate may seek assistance of anybody including a police report. Section 202 (1) does not satisfy about the mode and manner of enquiry or the modus operandi as to how it would be conducted. The Prima facie satisfaction of the Magistrate is paramount consideration.

7. This is a general provision or a kind of direction upon the Magistrate to conduct a preliminary enquiry before issuing a process. But in case of a process under Section 138/141 of N.I. Act, the relevant provisions are manifestly clear as to what are the things that is to be considered by the learned Magistrate. There must be a petition of complaint which discloses about existence of any debt, to meet the debt, if at all, there must be an issuance of cheque by the accused which has been declared dishonoured by the bank concerned due to insufficiency of fund or for other reasons. The Magistrate is obliged further to see if a statutory notice has been given to the accused and if the accused does not pay his dues within the stipulated time, only thereafter the learned Magistrate after observing the compli