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Gauhati High Court

M/S Gbc Enterprise Limited & 3 Ors vs Rajimul Islam Sarkar on 13 July, 2017

Author: Manash Ranjan Pathak

Bench: Manash Ranjan Pathak

                                Crl. Pet. No. 809 of 2014

                                           BEFORE
                HON'BLE MR. JUSTICE MANASH RANJAN PATHAK

13.07.2017

             Heard Mr. Jyotirmoy Roy, learned counsel for the petitioners.

             Though notice was duly served on the sole respondent, he did not appear

in the matter and the matter proceeded ex-parte.

The petitioner No.1 is a Public Limited Company with its permanent office at Kolkata, West Bengal and the petitioner No. 4 is the Managing Director of the petitioner No.1 Company. The sole respondent was an agent of the petitioner No. 1 Company who was entrusted and empowered to collect money from different depositors in the form of Fixed Deposits, Recurring Deposits and Monthly Income Schemes etc. in favour of and on behalf of the petitioner No.1 Company for issuing non-convertible preference shares. The petitioners and the sole respondent entered into an agreement wherein the petitioners agreed to pay a sum of Rs. 12,61,000/- in a deferred manner to the respondent to discharge its liabilities to the investors and for that purpose, three cheques bearing Nos. (i) 751454 dated 25.09.2013 for a sum of Rs. 2,80,000/-; (ii) 751455 dated 03.10.2013 for a sum of Rs. 4,61,000/- and (iii) 751453 dated 10.10.2013 for a sum of Rs. 5,20,000/-, all drawn on United Bank of India, Kolkata were issued to the sole respondent. The said respondent though deposited the cheques issued by the petitioner Company for encashment towards making payment of matured amounts to the depositors; but those three cheques issued by the petitioners were dishonoured due to 'insufficient fund'. After complying with the formalities as required under the Negotiable Instruments Act, 1881, the sole respondent as a complainant on 27.10.2014 lodged a complaint before the Chief Judicial Magistrate, Dhubri against the petitioners for commission of offences under Section 138 of the Negotiable Instruments Act, 1881, as amended, read with Section 420/406 IPC, which was registered as C.R. Case No. 785c/2014. Learned Chief Judicial Magistrate, Dhubri transferred the said C.R. Case to the Court of Crl. Ptn. No. 809 of 2016 Page 1 of 4 learned Additional Chief Judicial Magistrate, Dhubri for its disposal. Said Additional Chief Judicial Magistrate, Dhubri after considering the affidavit on evidence filed along with the complaint and after recording the statement of the complainant, by his order dated 03.06.2014 passed in said C.R. Case No. 785c/2014, being prima facie satisfied and finding materials against the petitioners/accused persons, took cognizance of the offence under Section 138 of the Negotiable Instruments Act against the petitioner Nos. 1, 2 and 3 and issued summons to them directing the complainant/sole respondent to take steps on those accused persons/the present petitioners, within a period of seven days. It is only when they received summons in said C.R. Case No. 785c/2014, the petitioners could came to know about the pendency of said case before the learned Additional CJM, Dhubri. Being aggrieved with the same, the petitioners have preferred this criminal petition for quashing of the proceedings in the said C.R. Case No. 785c/2014 stating that the learned Trial Magistrate without making any enquiry as required under Section 202 Cr.P.C., took cognizance of the offence under Section 138 of the Negotiable Instruments Act and issued process against them.

The provisions of Sections 202 Cr.P.C were amended by the Amendment Act of 2005 making it mandatory to postpone the issue of process where the accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned as the same was found necessary in order to protect innocent persons from being harassed by unscrupulous persons and making it obligatory upon the Magistrate to enquire into the case himself or to direct investigation to be made by a police officer or by such other person as he thinks fit for the purpose of finding out whether or not there was sufficient ground against the accused before issuing summons in such cases.

The Hon'ble Apex Court in the case of National Bank of Oman -Vs- Barakara Abdul Aziz, reported in (2013) 2 SCC 488 have held that the duty of a Magistrate receiving a complaint is set out in Section 202 Cr.P.C. and there is an obligation on the Magistrate to find out if there is any material which calls for investigation by a criminal court. The scope of enquiry under this Section is restricted only to find out the truth or otherwise the allegations made in the complaint in order to determine whether process has to be issued or not.

Investigation under Section 202 Cr.P.C is different from the investigation contemplated in Section 156 Cr.P.C as it is only for holding the Magistrate to decide whether or not there is sufficient ground for him to proceed further. The scope of enquiry under Section 202 Cr.P.C is, therefore, limited to the ascertainment of truth or falsehood of the allegations made in the complaint - (i) on the materials placed by the complainant before the Court, (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out and for deciding the question purely from the point of view of the complaint without at all adverting to any defence that the accused may have.

From the complaint, it can be seen that all the accused person Nos. 1 to 4 in said C.R. Case No. 785c/2014 are resident from the State of West Bengal at Kolkata and Howrah respectively and outside the jurisdiction of the court of learned Additional Chief Judicial Magistrate, Dhubri. However, from the impugned order dated 03.06.2014 passed by the learned Additional Chief Judicial Magistrate Dhubri in said C.R. Case No. 785c/2014, it is seen that the learned Magistrate without making any mandatory enquiry as required under Section 202 Cr.P.C, took cognizance of offence and issued process against the petitioners who are residents of places outside the territorial jurisdiction of the learned Trial Magistrate. Moreover, from the perusal of the impugned order also does not reflect that the learned Trial Magistrate applied his judicious mind to the requirement of mandatory enquiry under Section 202 Cr.P.C.

As the impugned order dated 03.06.2014 passed by the learned Additional Chief Judicial Magistrate, Dhubri in said C.R. Case No. 785c/2014, that was preferred by the complainant/sole respondent, is without any due application of mind as to whether the mandatory enquiry under Section 202 Cr.P.C. in the said case is required or not, where the Trial Magistrate, by the impugned order dated 03.06.2014, just considering the affidavit in evidence filed by the complainant along with his complaint, took cognizance of the offences and issued summons to the accused petitioners, the impugned order dated 03.06.2014 is bad in law.

Considering the entire aspect of the matter and in exercise of the power under Section 482 Cr.P.C., the Court is of the view that if the said impugned order dated 03.06.2014 passed by the learned Additional Chief Judicial Magistrate, Crl. Ptn. No. 809 of 2016 Page 3 of 4 Dhubri in said C.R. Case No. 785c/2014 is allowed to continue, it would be an abuse of the process of the Court and accordingly, for the ends of justice, the same is set aside and quashed.

Further, the Trial Magistrate i.e. the learned Additional Chief Judicial Magistrate, Dhubri is hereby directed to reconsider the requirement of enquiry under Section 202 Cr.P.C. in said complaint preferred by the complainant/sole respondent herein being C.R. Case No. 785c/2014 and to pass a fresh and an appropriate order in the said complaint case in accordance with law.

With the aforesaid observation and direction, this criminal petition stands allowed.

The interim order passed earlier on 26.09.2014 stands merged with this order.

JUDGE Pb/-