Punjab-Haryana High Court
Harjinder Kaur Sandhu vs Surinder Kaur Sandhu on 15 July, 2013
Author: Sabina
Bench: Sabina
Crl.Misc.No.M-36058 of 2009 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
Crl.Misc.No.M-36058 of 2009 (O&M)
Date of decision: 15.7.2013
Harjinder Kaur Sandhu
......Petitioner
Versus
Surinder Kaur Sandhu
.......Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.N.K.Suneja, Advocate,
for the petitioner.
Mr.I.S.Brar, Advocate for
for respondent.
****
SABINA, J.
Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure, 1973 (for short `Cr.P.C.) seeking quashing of criminal complaint No.95 dated 5.11.2007 (Annexure P-
4) filed under Section 138 of the Negotiable Instruments Act, 1881 (for short `the Act') along with all subsequent proceedings arising therefrom and the summoning order dated 6.11.2007 (Annexure P-5).
In the present case, the complaint in question was filed by the respondent with regard to dishonour of cheque in question.
Learned counsel for the petitioner has submitted that the petitioner is resident of Mohali and the impugned order has been passed by the Chief Judicial Magistrate, Faridkot without complying Devi Anita 2013.07.19 17:08 I attest to the accuracy and integrity of this document Chandigarh Crl.Misc.No.M-36058 of 2009 (O&M) 2 with the mandatory provisions of Section 202 Cr.P.C. Learned counsel has placed reliance on S.K.Bhowmik vs. S.K.Arora and another 2007(4) RCR(Criminal) 650. Learned counsel has further submitted that Amarjit Singh Sandhu was having business dealings with the husband of the petitioner. The cheque in question had been stolen by Amarjit Singh Sandhu and with a view to settle scores with the husband of the petitioner, the said cheque had been used for filing the complaint under Section 138 of the Act against the petitioner.
Learned counsel for the respondent, on the other hand, has opposed the petition.
After hearing the learned counsel for the parties, I am of the opinion that the instant petition deserves to be allowed.
Amended Section 202 Cr.P.C. reads as under:-
"Postponement of issue of process-(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be Crl.Misc.No.M-36058 of 2009 (O&M) 3 made,-
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session;or
(b) where the complaint has not been made by a Court, unless the complainant an the witnesses present (if any) have been examined on oath under Section 200. (2)In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath;
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3)If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant".
Thus, as per the above provision, the Magistrate shall in case where the accused is residing at a place beyond the area in which he exercises his jurisdiction postpone the issue of process against the accused and also inquire into the case himself or direct an investigation to be made by a Police Officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding.
In the present case, a perusal of the impugned order Crl.Misc.No.M-36058 of 2009 (O&M) 4 reveals that the Magistrate has relied upon the statement of the complainant and the documents tendered in evidence while issuing the summoning order. Magistrate has not conducted any inquiry as envisaged under Section 202(1) Cr.P.C before passing the impugned summoning order as the petitioner is resident of Mohali.
In the present case, if an inquiry had been sought by the Magistrate by invoking provisions of Section 202 (1) Cr.P.C., he would have been in a position to pass the order in a more effective way in view of the plea taken by the petitioner that in fact, the complaint in question had been filed on the basis of stolen cheque by Amarjit Singh Sandhu to settle the scores with the husband of the petitioner as Amarjit Singh Sandhu was having business dealings with the husband of the petitioner.
Accordingly, this petition is partly allowed. The impugned order for summoning the petitioner dated 6.11.2007 (Annexure P-5) is set aside and the Magistrate is directed to pass the fresh order in accordance with law after complying with the provisions of Section 202 Cr.P.C.
(SABINA) JUDGE July 15, 2013 anita