2008 ALL MR (Cri) 3360
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(PANAJI BENCH)

A.P. LAVANDE, J.

Kedar Kakodkar Vs. Auduth Timblo

Criminal Writ Petition No.67 of 2008

13th October, 2008

Petitioner Counsel: Mr. RAJENDRA PAI , Mr. J. GODINHO
Respondent Counsel: Mr. SUDESH USGAONKAR

Negotiable Instruments Act (1881) S.138 - Criminal P.C. (1973), Ss.200, 204 - Issuance of process - Challenge to - Process issued by Magistrate without examining complainant under S.200 of Criminal P.C. by relying upon affidavit filed by him - Held, this exercise undertaken by Magistrate can not be sustained in law - Hence, order issuing process against petitioner as well as plea of accused recorded by the Magistrate are liable to be quashed and set aside. 2007 ALL MR (Cri) 1339 - Rel. on. (Para 7)

Cases Cited:
Maharaja Developers Vs. Udaysing Pratapsingh Bhonsle, 2007 ALL MR (Cri) 1339 [Para 4,5,7,8,9]


JUDGMENT

JUDGMENT :- Heard Mr. R. Pai, learned Counsel for the petitioner and Mr. Sudesh Usgaonkar, learned Counsel for the respondent. Rule. By consent returnable forthwith.

2. By this petition, the petitioner challenges the criminal proceedings initiated against him by the respondent before the Chief Judicial Magistrate, Panaji in Criminal Case No.868/OA/NI/2005/A.

3. Briefly the facts relevant for disposal of the present petition, are as under :

The respondent filed above complaint under section 138 of Negotiable Instruments Act ('The Act' for short) for dishonour of cheque dated 29-03-2005 for Rs.26,13,500/- issued by the petitioner. The respondent filed affidavit in support of the complaint on the basis of which the learned Chief Judicial Magistrate issued process against the petitioner under section 138 of the Act. After the process was issued, the plea of the petitioner was recorded, to which the petitioner pleaded not guilty. Thereafter, the matter was adjourned from time to time inter alia for exploring possibility of settlement.

4. Learned Counsel for the petitioner submitted that the proceedings initiated against him, are not maintainable primarily on the ground that the learned Magistrate has erred in issuing process against him without examining the complainant on oath. According to the learned Counsel, before issuing process, examination of the complainant is mandatory and the evidence by way of affidavit cannot be substitute for examination of the complainant. In support of this submission, learned Counsel has placed reliance upon Division Bench Judgment of this Court in Maharaja Developers and Another Vs. Udaysing Pratapsingh Bhonsle reported in 2007 ALL MR (Cri) 1339. The learned Counsel further submitted that in view of the judgment in Maharaja Developer's case, 2007 ALL MR (Cri) 1339 (supra), the entire proceedings initiated against the petitioner, are liable to be set aside and the matter remanded to the Magistrate and further that the petitioner is entitled to intervene in the matter under section 145 of the Act. He, therefore, submitted that the proceedings initiated against the petitioner under section 138 of the Act by filing Criminal Case No.868/OA/NI/2005/A, be quashed and set aside.

5. Per contra, Mr. Usgaonkar, learned Counsel for the respondent fairly conceded that in view of judgment in Maharaja Developer's case [2007 ALL MR (Cri) 1339] (supra), the respondent/complainant ought to have been examined before issuance of process. However, he submitted that the matter has to be remanded to the Magistrate to proceed under Chapter XV of Criminal Procedure Code and at this stage, the accused has no right to be heard. According to learned Counsel, it is for the Magistrate to decide what course he chooses to adopt in the case in terms of Chapter XV of the Code.

6. I have considered the submissions made by learned Counsel for the parties and perused the record and the judgment relied upon on behalf of the petitioner.

7. It is not in dispute that the respondent was not examined under Section 200 of the Code and the Magistrate relying upon affidavit filed by the respondent issued process against the petitioner. This exercise undertaken by the Magistrate cannot be sustained in view of the ratio laid down by the Division Bench of this Court in Maharaja Developer's case [2007 ALL MR (Cri) 1339] (supra). Moreover, Mr. Usgaonkar has also fairly conceded this legal position. Therefore, the order issuing process against the petitioner as well as plea of the accused recorded by the Magistrate are liable to quashed and set aside.

8. The next question which arises for consideration is, whether the petitioner is entitled to intervene before the Magistrate after the case is remanded to the Magistrate under Chapter XV of the Code. The Magistrate, taking cognizance, can examine the complainant and the witnesses under Section 200 of the Code. The Magistrate can resort to Section 202 of the Criminal Procedure Code, if the predicates mentioned therein are satisfied. Thereafter, the Magistrate can dismiss the complaint under Section 203 or issue process under Section 204. Therefore, I am unable to accept the statement of Mr. Pai, learned Counsel for the petitioner that the petitioner is entitled to intervene as a matter of right after the case is remanded to the Magistrate. In Maharaja Developer's case [2007 ALL MR (Cri) 1339] (supra) relied upon by the petitioner, the Division Bench in para 30 has observed that subordinate Courts are required to follow the mandate of Section 200 of the Code in respect of complaints filed under section 138 of the Act.

9. Considering the legal position as stated above and having regard to factual situation, the order issuing process against the petitioner and plea of the accused/petitioner recorded by the Magistrate, are liable to be set aside and are accordingly, hereby set aside and the matter is remanded to learned Chief Judicial Magistrate, Panaji to decide the same in accordance with law in the light of the ratio laid down in Maharaja Developer's case [2007 ALL MR (Cri) 1339] (supra).

10. Rule is made absolute in the aforesaid terms with no order as to costs.

Petition allowed.