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IN THE HIGH COURT OF JUDICATURE AT MADRAS
HON’BLE DR. JUSTICE G. JAYACHANDRAN, J.
R. Radha @ Radha Ramalingam – Petitioner
Versus
Madhan Raj – Respondent
Crl. O.P. Nos. 7948, 7986, 7988, 8042, 8090, 8127, 8239, 8240, 8241 of 2024, Crl. M.P. Nos. 5801, 5858, 5895, 5913, 5980, 5981, 5984, 5796, 5798 of 2024
Decided On : 06-05-2024
NEGOTIABLE INSTRUMENTS ACT - CRIMINAL PROCEDURE CODE - Sections 138, 202(1), 461 of Cr.P.C., Section 145 of N.I. Act - The court discussed the applicability of Section 202(1) of the Cr.P.C. in relation to complaints under Section 138 of the Negotiable Instruments Act, emphasizing that the amendment mandates an inquiry if the accused resides outside the jurisdiction. The court interpreted that the Judicial Magistrate had sufficient grounds to issue process based on the materials available, thus upholding the trial's validity despite the accused's claims of procedural irregularity.
Fact of the Case:
The respondent filed complaints against the petitioner for offenses under Section 138 of the Negotiable Instruments Act due to bounced cheques. The petitioner sought to quash these complaints, arguing that the issuance of process violated Section 202(1) of the Cr.P.C. as he resided outside the court's jurisdiction.
Finding of the Court:
The court found that the Judicial Magistrate had complied with Section 202(1) of the Cr.P.C. by conducting an inquiry and determining that there were sufficient grounds to proceed against the petitioner. The court noted that the complaints were supported by affidavits and documents, and the issuance of process was justified.
Issues: Whether the Judicial Magistrate complied with Section 202(1) of the Cr.P.C. before issuing process against the petitioner residing outside the jurisdiction.
Ratio Decidendi: The court held that the requirement for an inquiry under Section 202(1) is not absolute if sufficient grounds can be established from the materials on record. The court reaffirmed that the Magistrate's inquiry is limited to determining whether there are sufficient grounds for proceeding with the complaint.
Final Decision: The court dismissed the petitions filed by the petitioner, affirming the validity of the complaints and the trial proceedings.
ORDER :
1. The respondent herein has preferred a batch of private complaints against the petitioner herein for the offence under Section 138 of Negotiable Instruments Act, 1881 for issuance of cheques to discharge of enforceable liability, but without adequate fund in the account. The complaints were taken on file by the Judicial Magistrate No. V, Salem and issued process to the accused person. After examination of the accused, the trial has commenced.
2. At this juncture, the petitioner/accused has filed the present petitions under Section 482 of Cr.P.C., to quash the complaints on the ground that the issuance of process to the accused/petitioner is in contradiction to Section 202(1) of Cr.P.C and therefore, due to irregularity in the procedure the trial get vitiated under Section 461 of Cr.P.C.
3. The sum and substance of the argument made by the learned Senior Counsel Mr.N.Jothi appearing for the petitioner/accused is that Section 202(1) of Cr.P.C., was amended with effect from 23.06.2006 by inserting a mandate to the effect that if the accused is residing beyond the territorial jurisdiction of the Court, which take cognizance of the offence the issuance of process should be postponed till the Court enquiry the case itself or direct an investigation to be made by the Police Officer, for the purpose of deciding whether or not there is sufficient ground for proceeding.
4. According to the learned Senior Counsel appearing for the petitioner, in the instant case, the accused/petitioner resides beyond the territorial jurisdiction of the Learned Judicial Magistrate No. V, Salem and therefore, before issuance of process, the Learned Judicial Magistrate should have conducted enquiry and only after being satisfied that there is sufficient ground to proceed, the process should have been issued. Having failed to comply the said mandatory provision, the Criminal complaints are vitiated due to irregularity.
5. To buttress the above submissions, the Learned Senior Counsel has relied upon the following judgments:
(ii) Tej Kishan Sadhu vs. State and Others, MANU/DE/1332/2013
(iii) Vijay Dhanuka and others vs. Najima Mamtaj and others, (2014) 14 SCC 638
(iv) Abhuit Pawar vs. Hemant Madhukar Nimbalkar and another, (2017) 3 SCC 528
(v) C. Ilavarasu vs. State. Rep. By the Revenue Divisional Officer, Periyakulam, Theni District, 2019 (3) MWN (Cr.) 261
(vi) Birla Corporation Limited vs. Adventz Investments and holdings Limited and others, (2019) 16 SCC 610
(vii) In Re: Expeditious trial of Cases under Section 138 of N.I Act. 1881, AIR 2021 SC 1957
(viii) Rithesh Bawri and Others vs. Dalmia Bharath (Ltd) and Others, MANU/TN/6630/2021
(ix) Jayant and others vs. State of Madhya Pradesh, (2021) 2 SCC 670
(x) In Re: Expeditious trial of Cases under Section 138 of N.I Act 1881, AIR 2022 SC 2481
(xi) Nakkheeran Gopal and Damodharan Prakash vs. Rajendran, 2022 (1) MWN (Cr.) 420
(xii) Nakkheeran Publications and six others vs. C.K. Dhandapani, 2022 (3) MWN (Cr.) 322
(xiii) Shiv Jatia vs. Gian Chand Malick and Others, 2024 (3) Scale 75
(xiv) Bansilal S. Kabra vs. Global Trade Finance Limited and another, 2024 BHC-AS 5506-FB
6. On notice, the respondent appeared and filed a common counter. The Learned Senior Counsel Mr.R.John Sathyan appearing for the respondent submitted that the 15 cheques given by the accused/petitioner to discharge his debt were returned for want of fund and therefore, 15 summary trial cases have been initiated and they are all pending before the Judicial Magistrate No. V, Salem for nearly 2 years. Stating one reason or another, the accused with an intention to protract the trial had been filing petitions on frivolous ground and in fact, in one set of petitions filed to quash the complaints. The High Court has directed the trial Court to complete the trial within a period of 6 months vide order dated 06.07.2022. However, even thereafter, the petitions are filed on unsustainabl
The court established that the amendment to Section 202(1) of the Cr.P.C. requires an inquiry only when the accused resides outside the jurisdiction, but if sufficient grounds are evident from the re....
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....
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.
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.
The inquiry under Section 202 Cr.P.C. is mandatory before issuing summons to an accused residing outside the jurisdiction, as established by the Supreme Court.
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....
The Magistrate must conduct an inquiry under Section 202 Cr.P.C. before issuing process against accused residing outside jurisdiction to prevent harassment through false complaints.
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....
An enquiry under Section 202 of Cr.P.C. is mandatory before the issuance of process in Complaints filed under Section 138 of the Negotiable Instruments Act, 1881, and the Magistrate must comply with ....
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