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High Court of Judicature at Calcutta
S.P. TALUKDAR
Biswanath Maheswari
Versus
Navbharat Tea Processing Private Limited
C. R.R.N0.1997 of 2008 with C.R.R. No. 1998 of 2008 with C.R.R. No. 1999 of 2008
Decided On : 25-03-2010
NEGOTIABLE INSTRUMENTS ACT - SECTION 138 - COGNIZANCE - SECTION 202 OF CR. PC - AMENDMENT - SCOPE AND APPLICABILITY - INTERPRETATION - HARMONIOUS CONSTRUCTION - CRIMINAL PROCEDURE CODE - SECTION 200 - SECTION 203 - SECTION 204 - SECTION 205 - SECTION 317 - INTERPRETATION AND APPLICABILITY - MAGISTRATE'S JURISDICTION - TERRITORIAL LIMITS - PROCEDURE FOR ISSUANCE OF PROCESS - CASES UNDER NEGOTIABLE INSTRUMENTS ACT - SPECIAL CONSIDERATIONS.
Fact of the Case:
The petitioner, accused in a complaint under section 138 of the Negotiable Instruments Act, challenged the cognizance taken by the Magistrate and the subsequent proceedings, arguing that the Magistrate failed to comply with the amended section 202 of the Cr. PC, which mandates an inquiry or investigation before issuing process against an accused residing outside the Court's jurisdiction.
Finding of the Court:
1. The amendment to section 202 of the Cr. PC was intended to protect innocent persons from vexatious litigation and harassment by unscrupulous litigants filing complaints against individuals residing far away. 2. In cases under section 138 of the Negotiable Instruments Act, the Magistrate can issue process after examining the complaint and accompanying documents and being prima facie satisfied with the establishment of a case. 3. The requirement of an inquiry or investigation under section 202(1) of the Cr. PC is not mandatory in all cases, but only when the Magistrate is not satisfied with the existence of a prima facie case but does not think it appropriate to dismiss the complaint under section 203. 4. In such cases, the Magistrate can postpone the issue of process and direct further investigation, and if the accused resides outside the Court's jurisdiction, the Magistrate can conduct the inquiry himself or direct an investigation by a police officer or another person.
Issues: 1. Whether the amendment to section 202 of the Cr. PC mandates an inquiry or investigation before issuing process against an accused residing outside the Court's jurisdiction in all cases, including those under section 138 of the Negotiable Instruments Act. 2. Whether the Magistrate can straightway proceed from section 200 to section 204 of the Cr. PC without passing through section 202 in cases where a prima facie case is established.
Ratio Decidendi: 1. The amendment to section 202 of the Cr. PC is not intended to apply to all cases indiscriminately but is meant to protect innocent persons from vexatious litigation and harassment. 2. In cases under section 138 of the Negotiable Instruments Act, the Magistrate can issue process after examining the complaint and accompanying documents and being prima facie satisfied with the establishment of a case. 3. The requirement of an inquiry or investigation under section 202(1) of the Cr. PC is not mandatory in all cases but is discretionary and can be exercised when the Magistrate is not satisfied with the existence of a prima facie case but does not think it appropriate to dismiss the complaint under section 203. 4. In such cases, the Magistrate can postpone the issue of process and direct further investigation, and if the accused resides outside the Court's jurisdiction, the Magistrate can conduct the inquiry himself or direct an investigation by a police officer or another person.
Final Decision: The Court dismissed the petitioner's application, holding that the Magistrate was not required to compulsorily pass through section 202 of the Cr. PC before issuing process in a case under section 138 of the Negotiable Instruments Act where a prima facie case was established.
S. P. Talukdar, J.
1. The present three revisional applications relate to identical facts and points of law and accordingly have been heard at a time.
2. In C.R.R. No. 1997 of 2008, the petitioner, by filing an application under section 482 of the Code of Criminal Procedure, has prayed for quashing of the proceeding of C.R. Case No. 400 of 2007 under sections 138/141 of the Negotiable Instruments Act now pending before the 1st Court of Judicial Magistrate, Jalpaiguri.
3. Grievances of the petitioner, as ventilated by learned Counsel, may briefly be stated as follows: The present respondent No. 1 and petitioner had business deal with each other. Complainant company despatched tea valued at Rs. 3,94,000/- to the accused No. 1 company covered by necessary papers and accordingly raised bill for the said amount being the value of made tea. Accused No. 1 company towards payment of the said amount being their legally enforceable debt and subsisting liabilities issued one post dated cheque bearing No. 307974 dated 14.3.2007 for Rs. 3,94,000/- only drawn on UTI Bank, Kolkata under the signature of accused No. 3 to the knowledge of the other accused persons with clear promise and assurance that upon presentation of the said cheque, the same would definitely be honoured. The cheque was accordingly presented by the complainant company to its banker i.e., Centurion Bank of Punjab Limited, Kolkata for encashment. It was returned dishonoured with endorsement insufficient fund. The complainant company thereafter contacted the accused persons who requested the complainant to bear with them as they were facing financial hardship. The complainant company was asked to present the cheque again in July, 2007. On the basis of such assurance and with the legitimate expectation, the cheque was presented by the complainant company to its banker i.e., Allahabad Bank, Jalpaiguri branch on 30th July, 2007. It too bounced vide bank intimation dated 31st July, 2007 showing the reason that the account had been closed. This reflects the dishonest intention of the accused persons. The complainant thereafter issued demand notice through its lawyer dated 10th August, 2007 requesting the accused persons to arrange payment of the said amount of Rs.3,94,000/-. The accused No. 1 company despite receipt of the said notice did not make any arrangement for payment of the said amount. It rather resorted to evasive replies and thereby attempted to escape the penal liabilities. The requirement issuing of notice in terms of clause (b) of proviso to section 139 of the N.I. Act was duly complied with and notices were sent at the correct address of the drawers of the cheque by registered speed post. Thus, the accused No. 1 company as well as its Directors were duly served with the legal notice dated 10th August, 2007. Thus, the accused persons committed offences under section 138 read with section 141 of the N.I. Act. The cause of action arose on the failure of the accused persons to make arrangement of fund covered by the cheque in question after the expiry of period of 15 days prescribed for payment in the notice dated 10th August, 2007, posted on 14th August, 2007, i.e. to say 30th August, 2007 and the said cause of action still continues. Complainant, in such circumstances, approached the learned Court for taking cognizance under section 138 read with section 141 of the N.I. Act, 1881, as amended by Act No. 55 of 2002 and prayed for issuance of summons upon the accused persons and their trial in accordance with law. Learned Magistrate by order dated 28th September, 2007 referred to such petition of complaint and the affidavit-in-chief, which was filed. On perusal of the complaint, learned CJM, Jalpaiguri, transferred the case to the learned 1st Court of JM, Jalpaiguri for disposal. On 8th October, 2007, learned Transferee Court examined the complaint on S.A. under section 200 of the Cr. PC. Thereafter, on perusal of the complaint, initial deposition and the af
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