The application of Section 202 of the Code is discretionary and comes into operation only in cases where the Magistrate in his discretion decides to postpone the issue of process. The impermissibility of representing the cheque for the second time is not a valid ground for quashing the proceedings.

1. This petitioner has been filed to quash the proceedings in C.C.No.4980 of 2010, pending on the file of the Court of VII Metropolitan Magistrate, George Town, Chennai.

2. The learned counsel for the petitioner submitted that the accused in this case is a resident of Bangalore and the complaint is filed against him in Chennai and as such, the learned Magistrate ought to have followed the mandatory procedure contemplated under Section 202 Cr.P.C. As per the amended provision under Section 202 Cr.P.C., the learned Magistrate ought to have enquired the case himself or directed an investigation to be made by a police officer or by such person as he think fit for the purpose of deciding whether or not there is sufficient ground for proceeding against the company. The learned Magistrate by failing to postpone the issue of process and by not holding any enquiry has violated the provision under Section 202 Cr.P.C.

3. The learned counsel for the petitioner himself after putforthing this argument drew the attention of this Court fairly to the decision of the Calcutta High Court made in C.R.R.No.348 of 2007 dated 04.02.2009, wherein it is held that an application under Section 202 Cr.P.C., is discretionary and the same will come into operation only in cases where the learned Magistrate in his discretion decides to postpone the issue of process. The learned counsel further submitted that challenging the said order of the Honourable High Court of Calcutta, a petition has been preferred before the Honourable Supreme Court in Special Leave Petition to Appeal (Crime) No.4432 of 2009.

4. The learned counsel for the petitioner raised one more issue by submitting that cheque was represented for the second time without giving any notice to the petitioner which is impermissible under Negotiable Instruments Act.

5. This Court considered the submissions made by the petitioner and perused the records. Section 202(i) Cr.P.C., reads as follows:

“202. Postponement of issue of process.

(1) Any Magistrate, on receipt of a complaint of an offence which he is authorized to take cognizance or which has been made over to him under section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either inquire into the case himself or direct an 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 is sufficient ground for proceeding:

Provided that no such direction for investigation shall be made,-

(a) Where it appears to the Magistrate that the offence complained of its triable exclusively by the Court of Sessions; or

(b) Where the complaint has not been made by a court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.”

(2)….

(3)….

6. Though the plain reading of Section 202(1) Cr.P.C., shows that if the accused residing at a place beyond the area in which the learned Magistrate exercise his jurisdiction shall postpone the issue of process against the accused and then to enquire the case himself or direct an investigation to be made in order to try whether or not there is sufficient ground for proceeding in this case, the offence being under Section 138 of Negotiable Instruments Act, it is certain that the Magistrate cannot send the case for investigation and it should be treated only as private complaint. The learned Magistrate recorded the sworn statement of the complainant and thereafter only taken cognizance of the offence. While so, the issue arises whether the cognizance taken by the learned Magistrate without enquiring the complaint is illegal.

7. The Honourable Calcutta High Court observed in the order made in C.R.R.No.348 of 2007 as follows:

“The intention of the legislature is to accord some protection to the persons who are residing at far of places whereby he is dragg