The court upheld that a Magistrate's satisfaction of a prima facie case suffices for taking cognizance, even if explicit mention of an inquiry under Section 202 Cr.P.C. is absent.

ORDER :

The Criminal Revision is directed against the order dated 27.09.2022 taking cognizance in C.C.No.1009 of 2022 for the offence under Section 138 of Negotiable Instruments Act.

2. It is evident from the records that the deceased respondent/ complainant has filed a private complaint under Section 200 Cr.P.C . against the petitioner/accused for the offences under Sections 138 r/w 142 of Negotiable Instruments Act and the learned Magistrate has passed the impugned order taking cognizance of the case. After filing of the complaint, since the complainant died, his wife got herself impleaded as complainant and proceeded with the same.

3. The case of the complainant is that the petitioner, in order to meet out her urgent family expenses, borrowed a sum of Rs.25,00,000/- on 24.11.2021 and executed a promissory note in favour of the complainant on the same day itself agreeing to repay the same within six months with interest at 12% per annum on demand, that the petitioner has not repaid any amount to the complainant despite repeated requests and lastly, after the complainant's frequent efforts, the petitioner issued a cheque for sum of Rs.25,00,000/- drawn on Indian Overseas Bank, Palayam Branch, Dindigul, that when the cheque was presented for collection through the complainant's banker Indian Overseas Bank, Trichy Main Branch, the same came to be returned on the ground that no amount was available in the Bank account, that the complainant has then sent a legal notice dated 31.05.2022 demanding the payment of cheque amount, that the petitioner having received the notice on 07.06.2022 failed to make payment within 15 days of the receipt thereof and that therefore, the complainant was constrained to lodge the private complaint.

4. The learned counsel appearing for the petitioner would mainly contend that since the petitioner is residing beyond the territorial jurisdiction of the Court which took cognizance of the case, the learned Magistrate ought to have postponed of issue of process and conducted enquiry under Section 202 Cr.P.C ., that the learned Magistrate must have conducted enquiry under Section 202 Cr.P.C . before taking cognizance and sending process against the petitioner, that enquiry under Section 202 Cr.P.C . before taking cognizance is mandatory and that the learned Magistrate, without conducting any enquiry under Section 202 Cr.P.C ., has mechanically taken cognizance of the case and issued the process and hence, proceedings of the learned Magistrate suffers from the vice of non-application of mind in law.

5. The learned counsel appearing for the petitioner would rely on the judgment of the Constitution of the Hon'ble Supreme Court in In Re: Expeditious Trial of Cases under Section 138 of N.I. Act 1881 reported in 2021 SCC OnLine SC 325 and the decision of the Hon'ble Supreme Court in Sunil Todi and Others Vs. State of Gujarat and Another reported in (2022) 16 SCC 762 .

6. The learned counsel appearing for the petitioner would rely on the conclusions arrived at by the Constitution Bench in Serial Nos.2 and 3, which are extracted hereunder:-

“24. ...

2) Inquiry shall be conducted on receipt of complaints under Section 138 of the Act to arrive at sufficient grounds to proceed against the accused, when such accused resides beyond the territorial jurisdiction of the court.

3) For the conduct of inquiry under Section 202 of the Code, evidence of witnesses on behalf of the complainant shall be permitted to be taken on affidavit. In suitable cases, the Magistrate can restrict the inquiry to examination of documents without insisting for examination of witnesses.”

7. In Sunil Todi's case, the Hon'ble Supreme Court, by referring to the decision of the Constitution Bench, has observed,

“38. Section 145 of the NI Act provides that evidence of the complainant may be given by him on affidavit, which shall be read in evidence in an inquiry, trial or other proceeding notwithstanding anything contained in the CrPC. The Constitut