Criminal Writ Petition No. 138 of 2011

21st November, 2011

Petitioner Counsel: Mr. Sunil Manohar,Mr Rohit Joshi
Respondent Counsel: Mr. S.V. Sirpurkar,Mr. A.S. Sonare

Cases Cited:
K.T. Joseph Vs. State of Kerala & another, (2009) 15 SCC 199 [Para 4,6]
S.C. Mathur (Capt) and another Vs. Elektronik Lab. & others, 2010 (2) Bom.C.R. (Cri) 385 [Para 4]
Neelu Chopra and another Vs. Bharti, 2010 ALL MR (Cri) 658 (S.C.)=(2009) 10 SCC 184 [Para 4]
Sau. Sangita w/o Ashok Borawar Vs. Sau. Surekha w/o Nandu Borawar and another, 2010 ALL MR (Cri) 3034 [Para 5]
Devarapalli Reddy Vs. Narayana Reddy and others, AIR 1976 SC 1672 [Para 5]

JUDGMENT

JUDGMENT :- By consent of respective counsel, the matter is taken up for final hearing.

2. By means of this Petition, the petitioners prayed for setting aside the impugned order of issuance of process dated 16.12.2010 passed by the learned Judicial Magistrate, First Class and Special Court under section 138 of the Negotiable Instruments Act ( henceforth," the N.I.Act" in short) in Summary Criminal Case No.16047/2010 passed against the petitioners ( original accused nos.1 to 7).

3. It is the grievance of the petitioners that all the accused against whom a complaint under section 138 of the N.I. Act was lodged were resident of Mumbai and, as such, resided beyond the jurisdiction of the learned trial Magistrate at Nagpur. The trial Magistrate chose to issue process merely after perusing the complaint, verification and the documents filed by the complainant. The impugned order was passed on the basis of prima facie view of accusation against the accused for offence punishable under section 138 of the N.I. Act.

4. Mr. Sunil Manohar, learned senior Advocate for the petitioners submitted with reference to the ruling in K.T. Joseph vs. State of Kerala & another reported in (2009) 15 SCC page 199 wherein the Apex Court considered the necessity of enquiry under section 202 of the Code of Crime Procedure, 1973 ( in short" "Cr.P.C.") after Section 202 of Cr.P.C. was amended with effect from 23rd June 2006 by Central Amending Act 25/2005. Thus, according to Shri Manohar, considering the amended provision it is mandatory on the part of the learned Magistrate to conduct an enquiry under section 202 of the Cr.P.C. And to consider the sworn statements of the witnesses at the stage of taking cognizance. It became mandatory particularly when the accused are resident of a place beyond the local limits of the area in which the learned trial Magistrate is exercising his jurisdiction. The ruling is also followed in S.C. Mathur (Capt) and another vs. Elektronik Lab. & others reported in 2010 (2) Bom,.C.R. (Cri) 385. This Court held with reference to the ruling in K T Joseph vs. State of Kerala (supra) that the view of the Supreme Court is binding upon this Court and the said decision cannot be brushed aside against the accused who are the residents beyond the place in which the Magistrate concerned is exercising his jurisdiction. The inquiry became mandatory as the Apex Court observed that the legal position is unexceptionable. Reference in this regard is also made to ruling in Neelu Chopra and another vs. Bharti reported in (2009) 10 SCC Page 184 : [2010 ALL MR (Cri) 658 (S.C.)] in support of the submission that the impugned order is liable to be quashed and set aside for nonobservance of mandatory legal position.

5. On behalf of the complainant / respondents 1 and 2 Mr. S.V.Sirpurkar, learned Advocate submitted that the order regarding issuance of process is revisable and, therefore, the petition under section 482 ought not to be entertained. Learned Advocate for respondents further submitted that in the ruling of Sau. Sangita w/o Ashok Borawar vs. Sau.Surekha w/o Nandu Borawar and another : 2010 All MR (Cri) 3034 the provisions regarding taking cognizance of the complaint of offences were considered. My attention is invited to paragraph 11 of the said ruling regarding different modes prescribed by law and available with the Magistrate particularly at the precognizance stage when Magistrate may order investigation under section 156 (3) of the Cr.P.C. and at the stage of taking cognizance, requirement to proceed against under section 200 and subsequent sections of the Cr.P.C. as mentioned in paragraphs 11 and 12 of the ruling. It appears that the observations made by this Court were with reference to Devarapalli Reddy vs. Narayana Reddy and others : AIR 1976 SC 1672. The ruling in K.T.Joseph, it appears, was not brought to the notice of this Court in Sau.Sangita's case ( supra) regarding amendment made in Section 202 Cr.P.C. for postponement of issuance of process particularly when accused are resident of a place beyond the local limits of the jurisdiction of the Magistrate concerned.

6. Coming back to the facts of the present case, it cannot be disputed that the complaint was lodged in the Court of learned JMFC and Special Court under section 138 of the N.I. Act at Nagpur, whereas all the accused described in the complaint appears to have their residence at addresses in Mumbai. Under these circumstances, prima facie, it appears that the learned trial Magistrate ought to have postponed the issuance of process in view of the mandatory provision under section 202, as observed in this regard by the Apex Court in K T Joseph's case (supra). After perusing the contents of the complaint as also verification statement of the complainant the learned trial Magistrate ought to have postponed the issuance of process in the facts and circumstances of the case when accused were resident of a place beyond the jurisdiction of the learned trial Magistrate concerned. For this reason and considering the rulings cited before me, the impugned order must be held as unsustainable and, therefore, cannot be countenanced. The same is therefore, quashed and set aside. The learned JMFC, Nagpur and Special Court under section 138 of the N.I. Act shall exercise discretion in accordance with amended provision of Section 202 Cr.P.C. and in the light of the rulings referred above. The complainant shall appear before the learned JMFC and Special Court u/s 138, on 5th December, 2011 . The petition is allowed accordingly. In the circumstances, there shall be no order as to costs.

Petition allowed.