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2023 Supreme(Online)(CAL) 9911
CALCUTTA HIGH COURT
BIBEK CHAUDHURI, J
Pawan Kumar Agarwal – Appellant
Versus
The State of West Bengal & Anr. – Respondent
CRR 1956 of 2013 | CRR 1957 of 2013 | CRR 1958 of 2013 | CRR 2010 of 2013 | CRR 2592 of 2013 | CRR 2593 of 2013 | CRR 2865 of 2013 | CRR 3157 of 2013 | CRR 3158 of 2013
For the Appellants/Petitioners: Mr. Ayan Bhattacharjee, Mr. Amitabha Roy, Mr. Aditya R. Tiwary, Mr. Amitabrata Hait, Mr. Subhajit Manna, Ms. Ritu Das
For the Respondents: Mr. Phiroze Edulji, Ms. R. Mukherjee, Mr. Koushik Kundu
The necessity of an inquiry under Section 202 Cr.P.C. before issuing process in cases under Section 138 of the N.I. Act is mandatory if the accused resides outside the territorial jurisdiction.
Headnote:(A) Negotiable Instruments Act, 1881 - Sections 138 and 141 - Code of Criminal Procedure, 1973 - Section 202 - Inquiry necessity before process issuance under N.I. Act when accused resides outside jurisdiction - Court affirmed inquiry under Section 202 is essential to prevent false complaints and protect personal liberty. (Paras 1, 12, 14, 15, 19, 28)
(B) Presumption of innocence and the rights of individuals - Judicial procedure requires adherence for personal liberty; mandatory inquiry is upheld for fairness in legal proceedings. (Para 29)
Facts of the case:
The petitioner, a Managing Director, faced multiple complaints for dishonoured cheques totaling Rs.2,60,00,000/-; processes were issued against him without the mandatory inquiry required as he resides outside the issuer court's jurisdiction.
Findings of Court:
Process issuance was valid, since the learned Magistrate reviewed affidavits and documents despite no formal Section 202 inquiry being recorded.
Issues: The need for an inquiry under Section 202 when the accused resides outside jurisdiction was the primary query.
Ratio Decidendi: The Supreme Court's ruling established that Magistrates must conduct preliminary inquiries in such cases to ensure sufficient grounds exist for proceeding against distant accused individuals.
Result: Revisional applications are set aside.
| Table of Content |
|---|
| 1. allegations of cheques dishonoured (Para 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12) |
| 2. purpose and implications of inquiry requirement (Para 14 , 16 , 18 , 25) |
| 3. mandatory inquiry under section 202 cr.p.c. (Para 15 , 19 , 20) |
| 4. (Para 21 , 22 , 24 , 29) |
1. These bunches of criminal revisions have been assigned by the Hon’ble Chief Justice for determination of a common question as to whether an inquiry under Section 202 of the Code of Criminal Procedure is mandatory before issuance of process in a complaint under Section 138 read with Section 141 of the Negotiable Instruments Act when the accused resides outside the territorial jurisdiction of the learned Chief Judicial Magistrate at Kolkata.
2. The following are the facts of the case:-
C/22365/2011
3. The opposite party No.2 as complainant filed a complaint under Section 138 /141 of the Negotiable Instruments Act alleging, inter alia, that in discharge of existing date and liability the accused No.2 to 4 issued two account payee cheques being No.045737 dated 1st June, 2011 and 045738 dated 16th June, 2011 for Rs. 65 lakhs each, total being Rs.1,30,00,000/- drawn on Punjab and Sind Bank, 8 Old Court House Street, Kol-700001. The complainant/company deposited the said cheques to its banker within its validity period on 21st June, 2011.
However, the said cheques were dishonoured on the ground that payments were stopped by the drawer. Dishonour of cheque was followed by a demand notice issued by the complainant/company requiring the petitioner and others to repay the cheque amount within statutory period of time. As the accused persons failed to make payment of the said sum, 3 the petitioner/company lodged the aforesaid complaint before the learned Chief Metropolitan Magistrate, Kolkata. The Chief Metropolitan Magistrate transferred the case to the Metropolitan Magistrate, 16th Court, Kolkata who issued process against the accused persons under Section 200 of the Cr.P.C without making any inquiry under Section 202 of the Cr.P.C though the petitioner is a permanent resident of Ahmedabad in the State of Gujarat.
C/35317/2010
4. The opposite party No.2 as complainant filed a complaint under Section 138 /141 of the Negotiable Instruments Act alleging, inter alia, that in discharge of existing date and liability the accused No.2 to 4 issued two account payee cheque being No.045720 dated 22nd September, 2010 for Rs. 65 lakhs drawn on Punjab and Sind Bank, 8 Old Court House Street, Kol-700001. The complainant/company deposited the said cheques to its banker within its validity period on 27th September, 2010.
However, the said cheques were dishonoured on the ground that payments were stopped by the drawer. Dishonour of cheque was followed by a demand notice issued by the complainant/company requiring the petitioner and others to repay the cheque amount within statutory period of time. As the accused persons failed to make payment of the said sum, the petitioner/company lodged the aforesaid complaint before the learned Chief Metropolitan Magistrate, Kolkata. The Chief Metropolitan Magistrate transferred the case to the Metropolitan Magistrate, 16th Court, Kolkata who issued process against the accused persons under Section 200 of the 4 Cr.P.C without making any inquiry under Section 202 of the Cr.P.C though the petitioner is a permanent resident of Ahmedabad in the State of Gujarat.
C/7331/2012
5. The opposite party No.2 as complainant filed a complaint under Section 138 /141 of the Negotiable Instruments Act alleging, inter alia, that in discharge of existing date and liability the accused No.2 to 4 issued account payee cheque being No.045754 dated 31.01.2012 for Rs.49,88,360/- drawn on Punjab and Sind Bank, 8 Old Court House Street, Kol-700001. The complainant/company deposited the said cheques to its banker within its validity period on 23.02.2012. However, the said cheques were dishonoured on the ground that payments were stopped by the drawer. Dis
