Bombay High Court
K And K. Foundery Pvt. Ltd. Midc, Shiroli ... vs State Of Mah. Thr. Pso Ps Sitabuldi ... on 10 March, 2022
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
1 35.APL.27-2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APL) NO. 27 OF 2022
( K & K Foundery Pvt. Ltd. Thr. Its Managing Director & Ors.
Vs.
State of Maharashtra & Anr. )
Office Notes, Office Memoranda Court's or Judge's orders
of Coram, Appearances, Court's
orders or directions and
Registrar's orders
Mr. Bhushan Dafle, Advocate for the Applicants.
Mr. Amit R. Chutke, A.P.P. for the Non-Applicant No.1/State.
Mr. C.V. Kale, Advocate for the Non-Applicant No.2.
CORAM: AVINASH G. GHAROTE, J.
DATED : 10th MARCH, 2022.
Heard Mr. Dafle, learned counsel for the applicant, Mr. Chutke, learned APP for the non-applicant No.1/State and Mr. Kale, learned counsel for the non-applicant No.2.
2. The application challenges the order below Exh. 1, passed by the learned Judicial Magistrate First Class, Special Court, Nagpur under the Negotiable Instruments Act, issuing process on the ground, that the applicants/accused persons were all residing outside the territorial jurisdiction of the learned Judicial Magistrate First Class, Nagpur, and therefore, in view of the amendment to Section 202 of the Code of Criminal Procedure, which came into effect from 23.06.2006, there was a need for postponement of issuance of process and to make an inquiry himself or direct an investigation 2 35.APL.27-2022.odt to be made by a Police Officer for the purpose of deciding whether or not there were sufficient grounds for proceeding. Reliance is also placed upon the order of the Hon'ble Apex Court, in Suo Motu Writ Petition (Crl.) No. 2/2020, Decided on 16.04.2021, Re: Expeditious Trial of Cases Under Section 138 of the N.I. Act, 1881 (SC) (Constitution Bench), 2021 ALL MR (Cri) 2641, so also on Rainbow Papers Limited & Ors. Vs. State of Maharashtra & Anr., 2021 ALL MR (Cri) 3527 and the Circular issued by the Registrar General, High Court of Judicature, Appellate Side, Bombay, dated 27.01.2022, in pursuance to the order of the Hon'ble Apex Court dated 16.04.2021. It is therefore contended, that the impugned order, cannot be sustained, as it does not indicate the compliance of the requirements as mandated above.
3. Mr. Kale, learned counsel for the non-applicant No.2, on the other hand, while opposing the application relies upon the judgment of the learned Single Judge of this Court in Criminal Application (APL) No. 1768/2019, Blackburn Metals Vs. M/s. Zep Engineering Works & Ors., which after considering the judgment of the Hon'ble Constitution Bench of the Apex Court in Re: Expeditious Trial, has held that the issuance of process was correct.
4. Section 202(1) of the Code of Criminal Procedure (for short "Cr.P.C."), came to be amended by virtue of Section 19 of the Act 25 of 2005 with effect from 23.06.2006, as indicated under:
3 35.APL.27-2022.odt "202(1). 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, 1 [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 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 and 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."
1. Inserted by Act 25 of 2005, S.19 (w.e.f. 23-6-2006).
5. The above position was examined by the Hon'ble Apex Court in Re: Expeditious Trial (Supra), in 4 35.APL.27-2022.odt which, the following conclusions have been rendered.
"24. The upshot of the above discussion leads us to the following conclusions:
1) The High Courts are requested to issue practice directions to the Magistrates to record reasons before converting trial of complaints under Section 138 of the Act from summary trial to summons trial.
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.
4) We recommend that suitable amendments be made to the Act for provision of one trial against a person for multiple offences under Section 138 of the Act committed within a period of 12 months, notwithstanding the restriction in Section 219 of the Code.
5) The High Courts are requested to issue practice directions to the Trial Courts to treat service of summons in one complaint under Section 138 forming part of a transaction, as deemed service in respect of all the complaints filed before the same court relating to dishonour of cheques issued as part of the said transaction.
6) Judgments of this Court in Adalat Prasad (supra) and Subramanium Sethuraman (supra) have interpreted the law correctly and we reiterate that there is no inherent power of Trial Courts to review or recall the issue of summons. This does not affect the power of the Trial Court under Section 322 of the Code 5 35.APL.27-2022.odt to revisit the order of issue of process in case it is brought to the court's notice that it lacks jurisdiction to try the complaint.
7) Section 258 of the Code is not applicable to complaints under Section 138 of the Act and findings to the contrary in Meters and Instruments (supra) do not lay down correct law. To conclusively deal with this aspect, amendment to the Act empowering the Trial Courts to reconsider/recall summons in respect of complaints under Section 138 shall be considered by the Committee constituted by an order of this Court dated 10.03.2021.
8) All other points, which have been raised by the Amici Curiae in their preliminary report and written submissions and not considered herein, shall be the subject matter of deliberation by the aforementioned Committee. Any other issue relating to expeditious disposal of complaints under Section 138 of the Act shall also be considered by the Committee."
6. The Registrar General, High Court of Judicature, Appellate Side, Bombay, thereafter in pursuance what has been held by the Hon'ble Apex Court in Re: Expeditious Trial (Supra), has issued a Circular dated 27.01.2022, which reads as under:
"Circular Dated 27.01.2022 :
1. The magistrates having jurisdiction to try offences under the Negotiable Instruments Act, 1881 (in short N.I. Act), shall record cogent and sufficient reasons before converting a complaint under section 138 of the N.I. Act from summary trial to summons trial in exercise of power under the second proviso of section 143 of N.I.Act. Due care and caution shall be exercised in this regard and the conversion of summary trial to summons trial shall not be in a mechanical manner. 6 35.APL.27-2022.odt
2. On receipt of any complaint under section 138 of N.I. Act, wherever it is found that any accused is resident of the area beyond the territorial jurisdiction of the magistrate concerned, an inquiry shall be conducted by the magistrate to arrive at sufficient grounds to proceed against the accused as prescribed under section 202 of Criminal Procedure Code.
3. While conducting any such inquiry under section 202 of Criminal Procedure Code, the evidence of witnesses on behalf of the complainant shall be permitted to be taken on affidavit. In suitable cases, the magistrate may restrict the inquiry to examination of documents without insisting for examination of witnesses for satisfaction as to the sufficiency of grounds for proceeding under the said provision.
4. Trial Court shall treat service of summons in one complaint under section 138 of the N.I. Act forming part of a transaction, as deemed service in respect of all complaints filed before the same Court relating to the dishonor of cheques issued as a part of the same transaction.
5. Trial Courts have no inherent power to review or recall the issue of summons in relation to complaint filed under section 138 of N.I. Act. However, the same shall not affect the power of the Trial Court under section 322 of Criminal Procedure Code to revisit the order of issue of process in case it is brought to the court's notice that it lacks jurisdiction to try the complaint.
6. Section 258 of Criminal Procedure Code has no applicability to complaints under section 138 of the N.I.Act. The words "as far as may be" in section 143 are used only in respect of applicability of sections 262 to 265 of the Code and the summary procedure to be followed for trials under the said Code.
7. The appellate Courts before which appeals
7 35.APL.27-2022.odt against the judgments in complaint under section 138 of the N.I. Act are pending are directed to make an effort to settle the dispute through mediation.
These practice directions shall come into force with immediate effect."
7. The learned Single Judge of this Court in Rainbow Papers Limited & Ors. (Supra), has considered the above position and has held that since an inquiry under Section 202(1) of the Cr.P.C., was mandatory in the context of the complaints under Section 138 N.I. Act, where the accused resided outside the territorial jurisdiction of the Magistrate and as the same was not conducted, the order of issuance of process which did not conform with what has been held in Re: Expeditious Trial (Supra), would not be sustainable.
8. It would be therefore apparent, that the learned Special Court trying offence under Section 138 of the N.I. Act, would be mindful of what has been held in Re: Expeditious Trial (Supra), and the Circular dated 27.01.2022 issued by the Registrar General, High Court of Judicature, Appellate Side, Bombay, prescribing practice direction and calling upon the strict compliance with the same.
9. It is not as if, that the hands of the learned Special Court have been tide down. Para 24 (3) of the conclusions in Re: Expeditious Trial (Supra) indicates, that in suitable cases, the Magistrate can restrict the inquiry to examination of documents without insisting for examination of witnesses, however in order to do so, 8 35.APL.27-2022.odt the order issuing process should indicate the reasons why the learned Magistrate feels it necessary that there is no requirement of recording evidence of witnesses in a case where the accused resides beyond the territorial jurisdiction of the Magistrate.
10. In Blackburn Metals (Supra), it has been specifically held, that the Magistrate has recorded his requisite satisfaction from the documents available on record as to the sufficiency of the grounds for proceeding under Section 202 against the accused and so also the fact, that the Magistrate himself had personally verified the complainant, considering which, Blackburn Metals (Supra), would be of no assistance to Mr. Kale, learned counsel for the non-applicant No.2.
11. The impugned order in the present matter does not indicate any reasons whatsoever, for restricting the inquiry for examination of the documents and not insisting for examination of witnesses. In my considered opinion, consequent to the judgment of the Hon'ble Apex Court in Re: Expeditious Trial (Supra) and the Circular dated 27.01.2022, it would be necessary for the learned Magistrate, in case, the accused resides outside the territorial jurisdiction of the Magistrate, and if the Magistrate feels it appropriate not to examine any witnesses, to at least record reasons, for doing so and the sufficiency of material based upon the documents available to dispense with the recording of evidence as contemplated by the inquiry under Section 202 of the Cr.P.C., as that course of action is held to be permissible 9 35.APL.27-2022.odt by the Hon'ble Apex Court.
12. In view of the position, that the impugned order does not indicate the recording of any reasons in that regard, the same is hereby quashed and set-aside and the matter is remanded back to the learned Judicial Magistrate First Class, Special Court, Nagpur, for the decision according to law.
13. The Application is accordingly allowed in the above terms with no order as to costs.
14. Pending application/s, if any, shall stand disposed of accordingly.
JUDGE SD. Bhimte Signed By:SHRIKANT DAMODHAR BHIMTE Signing Date:11.03.2022 18:51