High Court
Facts
(1) WP-1310-2022.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.1310 OF 2022EKVEERA JEWELLERS ANTURLI, JALGAON AS APROPRIETOR NANDKISHOR SHAMAKANT SONARVERSUSSHAUNAK DEEPAK KULKARNI AND ANOTHERANDCRIMINAL WRIT PETITION NO.1311 OF 2022EKVEERA JEWELLERS ANTURLI, JALGAON AS APROPRIETOR NANDKISHOR SHAMAKANT SONARVERSUSAISHWARYA D/O. DEEPAK KULKARNI AND ANOTHERANDCRIMINAL WRIT PETITION NO.1312 OF 2022EKVEERA JEWELLERS ANTURLI, JALGAON AS APROPRIETOR NANDKISHOR SHAMAKANT SONARVERSUSNANDINI W/O. DEEPAK KULKARNI AND ANOTHERANDCRIMINAL WRIT PETITION NO.1313 OF 2022EKVEERA JEWELLERS ANTURLI, JALGAON AS APROPRIETOR NANDKISHOR SHAMAKANT SONARVERSUSNANDINI W/O. DEEPAK KULKARNI AND ANOTHERANDCRIMINAL WRIT PETITION NO.1314 OF 2022EKVEERA JEWELLERS ANTURLI, JALGAON AS APROPRIETOR NANDKISHOR SHAMAKANT SONARVERSUSNANDINI W/O. DEEPAK KULKARNI AND ANOTHERANDCRIMINAL WRIT PETITION NO.1315 OF 2022EKVEERA JEWELLERS ANTURLI, JALGAON THROUGH ITSPROPRIETOR AND ANOTHERVERSUS
Legal Reasoning
(8) WP-1310-2022.odtupshot of conclusions. The second and third clauses of theconcluding paragraphs are relevant for the issue at hand,which reads as under :“2.Inquiry shall be conducted on receipt ofcomplaints Under Section 138 of the Act to arrive atsufcient grounds to proceed against the Accused,when such Accused resides beyond the territorialjurisdiction of the court.3.For the conduct of inquiry Under Section 202 ofthe Code, evidence of witnesses on behalf of thecomplainant shall be permitted to be taeen on afdavit.In suitable cases, the Magistrate can restrict the inquiryto examination of documents without insisting forexamination of witnesses.”9.The aforesaid mandate is re-afrms by theSupreme Court of India in case of Sunil Todi (supra). It isaccordingly observed that if the Magistrate holds an enquiryhimself, it is not compulsory that he should examinewitnesses and in suitable cases the Magistrate can examinedocuments to be satisfed that there are sufcient ground forproceeding under Section 202 of the Criminal ProcedureCode. Keeping in mind the aforesaid observations of theSupreme Court of India, if the impugned order is perused, itis evident that the learned Magistrate perused thedocuments and formed an opinion that prima facie ofenceunder Section 138 of the Negotiable Instrument Act hasbeen made out. However, opinion is neither preceded byenquiry as contemplated under Section 202 of the CriminalProcedure Code nor are reasons assigned to dispense withthe same. Admittedly, the complainant is not examinedbefore the Magistrate nor his evidence afdavit wastendered into service. The issuance of process appears tobe based on contents of the complaints supported byverifcation afdavit and documents tendered into service. (9) WP-1310-2022.odt10.Although examination of all the witnesses is notrequired to comply the mandate under Section 202 of theCriminal Procedure Code, the minimal requirement oftendering evidence afdavit of the complainant,consideration of the documents making out ofence underSection 138 of the Negotiable Instrument Act or assignmentof the requisite reasons for dispensing with the detailedenquiry would still be necessary where accused residesbeyond jurisdiction of the Magistrate. This Court in case ofShivshankar Shrikushna Dhole (supra) observed thatmerely reading of the complaint and verifcation statementon oath given by the complainant while issuing processwould not constitute sufcient compliance with mandatoryrequirement of Section 202 of the Criminal Procedure Code,particularly in the teeth of law laid down by the SupremeCourt of India in Constitution Bench judgment. Similar viewis taken in case of Sayed Mohammed Omair SayedIbrahim and Others (supra). This Court observed thatalthough ofence under Section 138 of the NegotiableInstrument Act depends upon the documents, the proofrequires examination of the witnesses. Even the Magistrateis left with discretion to dispense with the enquiry, he shouldassign reasons for the same as to why he is restrictinghimself to the examination of the documents. Keeping inmind the aforesaid observations of this Court, if theimpugned order is examined, apparently it sans requisitereasons for dispensing with the enquiry. Resultantly, theorder impugned bereft of mandate under Section 202 of theCriminal Procedure Code. (10) WP-1310-2022.odt11.The second limb of the argument advanced onbehalf of the respondent is that the learned Magistrate hasrecorded plea of the petitioner on 30.12.2019, therefore, atthis stage indulgence of this Court in Writ jurisdiction is notwarranted. However, as observed in the aforesaidparagraphs, the mandate under Section 202 of the CriminalProcedure Code has been ignored by the Magistrate whilepassing order of issuance of process. The non-observance ofthe aforesaid mandate would vitiates the order. Therefore,merely because on appearance of the accused, plea isrecorded, impugned order cannot be be perpetuated. It ispertinent to note here that before recording the plea of theaccused, he had approached the Sessions Judge by flingCriminal Revision, thereby raising challenge to issuance ofprocess with specifc objection that the order is bereft ofmandate under Section 202 of the Criminal Procedure Code.The respondents seeks to rely upon the judgment of thisCourt in case of Prakash Nanji Thakkar (supra). However,in that case after recording plea of the accused, theevidence of the witnesses was already tendered and thecomplainant was cross-examined. In that scenario, thisCourt declined to cause interference in the order of issuanceof process in exercise of inherent powers under Section 482of the Criminal Procedure Code. Similarly, the observationsin the Balckburn Metals (supra) would not assist therespondents to carry forward their submissions.12.The third contention raised on behalf of therespondents that the Magistrate exercises jurisdiction overentire district is wholly misconceived. The local jurisdictionof the Judicial Magistrate is subject to the control of the HighCourt and local limits of the areas within which Magistrate (11) WP-1310-2022.odtappointed may exercise powers are defned. It is notdisputed before this Court that Judicial Magistrate First Classat Jalgaon exercise it’s powers within the limit of JalgaonTaluka and Magistrates are appointed at every such Talukasfor exercise of jurisdiction within such local limits. Sub-Section (2) of Section 14 of the Criminal Procedure Code isthe general provision, which is subject to the control of theHigh Court or local limits of areas defned by the ChiefJudicial Magistrate. 13.Resultantly, the following order is passed.O R D E R I.The Criminal Writ Petitions are allowed in terms ofprayer Clauses (B) and (C) with further direction that :-i.the Magistrate shall proceed from the stage ofSection 202 of the Criminal Procedure Code. ii.The learned Magistrate may conduct theenquiry under Section 202 of the CriminalProcedure Code. iii.The evidence of the witnesses on behalf of thecomplainants may be permitted to be taken onafdavit. iv.The Magistrate may or restrict the enquiry tothe examination of the documents withoutinsisting for examination of the witnesses byassigning adequate reasons for dispensing withthe enquiry.
Arguments
(2) WP-1310-2022.odtDEEPAK DIWAKAR KULKARNI AND ANOTHERANDCRIMINAL WRIT PETITION NO.1316 OF 2022EKVEERA JEWELLERS ANTURLI, JALGAON AS APROPRIETOR NANDKISHOR SHAMAKANT SONARVERSUSAISHWARYA D/O. DEEPAK KULKARNI AND ANOTHERANDCRIMINAL WRIT PETITION NO.1317 OF 2022EKVEERA JEWELLERS ANTURLI, JALGAON AS APROPRIETOR NANDKISHOR SHAMAKANT SONARVERSUSSHAUNAK DEEPAK KULKARNI AND ANOTHERANDCRIMINAL WRIT PETITION NO.1318 OF 2022EKVEERA JEWELLERS ANTURLI, JALGAON AS APROPRIETOR NANDKISHOR SHAMAKANT SONARVERSUSSHUBHENDU DEEPAK KULKARNI AND ANOTHER …Mrs. Rashmi Kulkarni a/w Ms. Namita Thole and RohitDhongde,, Advocate for the Petitioner.Mrs. P. V. Diggikar, APP for Respondent-State.Mr. Shripad Dodiya h/f Mr. Sunil Kaldate, Advocate forRespondent No.1. … CORAM : S. G. CHAPALGAONKAR, J....RESERVED ON : 10th OCTOBER, 2023.PRONOUNCED ON : 21st DECEMBER, 2023.ORDER:-1.This group of Writ Petitions is clubbed together forhearing, since it raises common question of law and facts. Itarises out of the complaints instituted under Section 138 ofthe Negotiable Instrument Act by respective respondents (3) WP-1310-2022.odtagainst the petitioner. The petitioner raises challenge to theorder of issuance of process passed by the JudicialMagistrate First Class, Jalgaon, so also the order of theSessions Court passed in Revision, thereby confrming theorder of Magistrate.2.In nutshell, the complaints are fled withcontention that the respondent is in the business of sellinggold and silver ornaments and runs his business in the nameand style as “Ekveera Jewellers Anturli”. In pursuance of thesaid business, the petitioner had foated a scheme by whichon investment of certain amount for more than two years,the interest at the rate of 1.25% per month was ofered. Onexpiry of two years locking period, the investor was entitledto receive his deposited amount alongwith interest or gold ofequal amount. The complainants participated in the schemeand deposited the amount. In lieu of the aforesaid deposits,the petitioner issued cheques, however, on presentation,dishonored with endorsement “payment stopped bydrawers”. The respondent issued demand notice, which hasbeen duly served upon the petitioner. However, he failed tocomply the notice by giving false reply, as such complainthas been fled.3.On presentation of the complaints, the learnedMagistrate passed the order below Exhibit-1, which readsthus:“Heard the learned Advocate for the complainant.Read the complaint and perused the documents. Thecomplaint is made for ofence punishable underSection 138 of the Negotiable Instrument Act. Thecomplainant complied all things which are mandatoryunder the Negotiable Instrument Act. The ofencepunishable under Section 138 of the Negotiable (4) WP-1310-2022.odtInstrument Act has been specifcally made out in thecomplaint. Hence, I pass the following orderORDERIssue process for the ofence punishable under Section 138 of the Negotiable Instrument Act against the accused.”4.The petitioner aggrieved by aforesaid order fledCriminal Revision Application under Section 397 of theCriminal Procedure Code before Sessions Judge, Jalgaonraising multifarious challenge. The learned Sessions Judgedismissed the Revision Application. Hence, the petitionerfled present Criminal Writ Petitions.5.Mrs. Rashmi Kulkarni, learned Advocate alongwithMs. Namita Thole and Rohit Dhongde, learned Advocatesappearing for the petitioner submits that although there areseveral grounds for challenge she would restrict submissionson the crucial issue which goes to the root of the matter.She would contend that the petitioner resides at Anturli, Tq.Muktainagar, Dist. Jalgaon i.e. beyond jurisdiction of theMagistrate at Jalgaon. The complaint has been instituted inthe Court Judicial Magistrate First Class at Jalgaon.However, while passing the impugned order of issuance ofprocess, the mandate under Section 202 of the CriminalProcedure Code is not observed. By inviting attention of thisCourt to the contents of impugned order she would contendthat neither enquiry appears to have been carried by theMagistrate nor reasons are recorded to dispense with suchinquiry mandated before issuance of process. On this countonly the impugned order deserves to be quashed and setaside. She would further submit that the learned Magistrateas well as the Court of Sessions ignored the mandate of lawrequiring enquiry before issuance of process in case accused (5) WP-1310-2022.odtresides beyond territorial jurisdiction of the Magistrate. Tobuttress her contentions she would rely upon the judgmentof this Court in case of Shivshankar Shrikushna DholeVs. State of Maharashtra and Ors.1, Sayed MohammedOmair Sayed Ibrahim and Others Vs. State ofMaharashtra and Others2, unreported judgment of thisCourt in the matter of Dr. Anita Patil Deshmukh Vs.Ashok Babulal Agrawal dated 18.08.2023 in CriminalWrit Petition No.750/2022 and Ismail Suleman ShaikhVs. Hanif Rafiue Sayyad dated 22.02.2023 in CriminalApplication No.3194/2022 and judgment of the SupremeCourt of India in the matter of Vishwakalyan MultistateCredit Co. Op. Soceity Ltd. Vs. ONEUP EntertainmentPrivate Limited dated 21.08.2023 in Criminal AppealNo.2484/2023.6.Per contra, Mr. Dodiya, learned Advocateappearing for the respondent vehemently submits that thepetitioner resides within Jalgaon District. The Magistratewould have jurisdiction over entire District in terms ofSection 14(2) of the Criminal Procedure Code. The mandateunder Section 202 of the Criminal Procedure Code wouldapply only when the accused resides beyond territory ofdistrict. He would further contend that Magistrate hasapplied his mind to the contents of the complaint dulysupported by verifcation afdavit alongwith documentaryevidence tendered into service. As such, text of the orderresembles with the enquiry contemplated under Section 202of the Criminal Procedure Code. He would further point outthat in pursuance of the service of summons, the petitionercaused his appearance before the Magistrate. His plea has12021 ALL MR (Cri.) 3409.22022 All M.R. (Cri.) 3310. (6) WP-1310-2022.odtbeen recorded. Therefore, at this stage no interferenceneeds to be caused in exercise of Writ jurisdiction of thisCourt. The Trial Court as well as Court of Revision has takenpragmatic view of the matter and issued process, whichneed not be disturbed in exercise of Writ jurisdiction of thisCourt. To buttress his contentions, he would rely upon theobservations of Full Bench of Supreme Court of India in SuoMotu Writ Petition (Cri.) No.2/20203. He would furtherrely upon the observations of the Supreme Court of India inthe matter of Sunil Todi & ors. Vs. State of Gujarat &Anr. dated 03.12.2021 in Criminal AppealNo.1446/2021, judgment of this Court in the matter ofPrakash Nanji Thakkar Vs. State of Maharashtra andAnother4, Blackburn Metals Vs. M/s. Zep EngineeringWorks and Ors.5 and judgment of the Calcutta High Courtin case of Pawan Kumar Agarwal Vs. The State of WestBengal and Ors.6.7.Having considered submissions advanced, theissue that arises for consideration in this matter is as towhether the impugned order passed by the Magistratethereby issuing process against the petitioner is sustainablein law, particularly in terms of mandate of Section 202 of theCriminal Procedure Code. The amended provisions ofSection 202 of the Criminal Procedure Code are introducedby Act of 25 of 2005 with efect from 26.06.2006 whichmandate that Magistrate, in case where accused is residingbeyond area of his jurisdiction shall postpone issuance ofprocess so as to enquire into the case himself or direct aninvestigation by police ofcer or by other person. The3AIR 2021 SC 1957.4(2020) 2 Mah LJ 394.52022 (5) Mh.LJ 475.6MANU/WB/1985/2023. (7) WP-1310-2022.odtrational for the said amendment is wisdom of Parliament toavoid false prosecution fled against persons residing at farof places. Section 202 of the Criminal Procedure Code statesas under: “202. Postponement of issue of process(1) Any Magistrate, on receipt of a complaint of anofence of which he is authorised to taee cogniaance orwhich has been made over to him under section 192,may, if he thines ft, postpone the issue of processagainst the accused, and either inquire into the casehimself or direct an investigation to be made by apolice ofcer or by such other person as he thines ft,for the purpose of deciding whether or not there issufcient ground for proceedingi Provided that no suchdirection for investigation shall be made,—(a) where it appears to the Magistrate that the ofencecomplained of is triable exclusivelyby the Court ofSessions; or(b) where the complaint has not been made by a Court,unless the complainant and the witnesses present (ifany) have been examined on oath under section 200(2) In an inquiry under sub-section (1), the Magistratemay, if he thines ft, taee evidence of witness on oathiProvided that if it appears to the Magistrate that theofence complained of is triable exclusively by theCourt of Session, he shall call upon the complainant toproduce all his witnesses and examine them on oath(3) If an investigation under sub-section (1) is made bya person not being a police ofcer, he shall have forthat investigation all the powers conferred by this Codeon an ofcer in charge of a police station except thepower to arrest without warrant”8.The Supreme Court of India in Suo Motu WritPetition No.2/2020 considered the scope of enquiry underSection 202 of the Criminal Procedure Code, particularly inreference to the complaints under Section 138 of theNegotiable Instrument Act and in paragraph no.24 laid down
Decision
(12) WP-1310-2022.odt14.The procedure under Section 202 of the CriminalProcedure Code shall be conducted as expeditiously aspossible and in any event within a period of one month fromthe date of receipt of this order.15.Writ Petitions are disposed of accordingly. (S. G. CHAPALGAONKAR)JUDGEDevendra/December-2023