Back
2023 Supreme(Online)(CAL) 10292
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 Cr.P.C is mandatory before issuing process in a complaint under Section 138 of the Negotiable Instruments Act if the accused resides outside the jurisdiction of the Magistrate.
Headnote:(A) Negotiable Instruments Act, 1881 - Sections 138 and 141 - Code of Criminal Procedure, 1973 - Section 202 - Authority of Magistrate - Inquiry requirements under Section 202 are mandatory when the accused resides outside the jurisdiction, as established by the Supreme Court. (Paras 1, 15, 16)
(B) Criminal Procedure - The necessity of inquiry to prevent harassment based on false complaints is emphasized. Observance of procedures is fundamental to protecting personal liberties. (Paras 19, 26)
Facts of the case:
Complaints under Sections 138/141 were lodged alleging dishonor of cheques issued to the complainant, with the accused residing outside the jurisdiction of the Chief Metropolitan Magistrate. (Paras 2-12)
Findings of Court:
The issuance of process without an inquiry under Section 202 of the Cr.P.C was found to be non-compliant with legal requirements. (Paras 29, 30)
Issues: Whether an inquiry under Section 202 is mandatory before issuing process in a complaint under Section 138 when the accused resides outside jurisdiction.
Ratio Decidendi: The court ruled that a mandatory inquiry under Section 202 is vital to ascertain sufficient grounds for proceeding against an accused residing outside jurisdiction, referencing Supreme Court precedents. (Paras 15-19, 28)
Result: The revisional applications are set aside.
| Table of Content |
|---|
| 1. details of complaints under negotiable instruments act. (Para 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11) |
| 2. requirement for inquiry under section 202 before issuing process. (Para 12 , 13 , 14) |
| 3. supreme court’s view on mandatory inquiries. (Para 15 , 16 , 17 , 18) |
| 4. petitioner's argument on procedural compliance. (Para 19 , 20 , 21) |
| 5. court’s rationale for concluding compliance. (Para 22 , 23 , 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 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 th
