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2023 Supreme(Online)(CAL) 283
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
An inquiry under Section 202 of the Code of Criminal Procedure is mandatory before issuing process in complaints under Section 138 of the Negotiable Instruments Act when the accused resides outside the court's jurisdiction.
Headnote:(A) Code of Criminal Procedure, 1973 - Section 202 - Negotiable Instruments Act, 1881 - Sections 138 and 141 - Inquiry under Section 202 is mandatory before issuance of process in a complaint when the accused resides outside the jurisdiction of the Magistrate. The court ruled that failure to comply is a ground for revising the issuance of process. (Paras 1, 15-19, 29)
(B) Criminal procedure - Requirement of inquiry - The Magistrate must ensure there are sufficient grounds for proceeding, especially regarding accusations that may cause harassment to residents outside jurisdiction. (Paras 16-19)
Facts of the case:
Multiple complaints under the Negotiable Instruments Act were lodged, alleging dishonor of cheques by accused who resided outside Kolkata. The Magistrate issued process without inquiry as required by law, leading to this revision.
Findings of Court:
The court found that the process issued lacked the mandatory inquiry under Section 202.
Issues: Whether the Magistrate is required to conduct an inquiry before issuing process when the accused resides outside jurisdiction.
Ratio Decidendi: The court held that the inquiry is essential, highlighting procedures to protect against harassment of individuals by ensuring there are sufficient grounds for issuing process in such cases.
Result: Revisional applications are set aside.
| Table of Content |
|---|
| 1. complaints under the ni act regarding dishonored cheques. (Para 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11) |
| 2. mandatory inquiry under section 202 cr.p.c when the accused is outside jurisdiction. (Para 12 , 13 , 14) |
| 3. supreme court stance on inquiries under section 202 in ni act cases. (Para 15 , 16 , 17) |
| 4. the necessity for inquiry to prevent false complaints against distant residents. (Para 18) |
| 5. defense arguments regarding the inquiry conducted by the magistrate. (Para 19 , 20 , 21 , 22) |
| 6. assessment of magistrate's compliance with section 202. (Para 24 , 25 , 26 , 27 , 28 , 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 b
