High Court

Legal Reasoning

..1..924-crwp-1669-22IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD924 CRIMINAL WRIT PETITION NO. 1669 OF 2022GULAM TAHER GULAM MUSTAFAVERSUSABDUL MUKHTAR ABDUL GAFFAR...Advocate for the Petitioner : Mr. Z. H. Farooqui, and Mr. A.N. SiddiquiAdvocate for Respondent : Mr. N. S. Muthiyan …CORAM: Y. G. KHOBRAGADE, J. DATE: 26.11.2024 ORAL JUDGMENT : 1.Rule. Rule made returnable forthwith. With the consent of boththe sides, the Petition is heard finally.2. Heard Mr. Z. H. Farooqui, the learned counsel for the Petitionerand Mr. N. S. Muthiyan, the learned counsel for the Respondent.3.Having regard to the submissions canvassed on behalf of bothsides, I have gone through the record.4.In the present Petition, under Articles 226 and 227 read withSection 482 of the Code of Criminal Procedure,1973, the Petitionerchallenges the order dated 11.10.2022 passed by the learned Additional ..2..924-crwp-1669-22Sessions Judge, Aurangabad below Exhibit 9 in Criminal RevisionApplication No. 174/2022 thereby confirmed the order dated03.03.2021 passed by the learned Judicial Magistrate First Class,Aurangabad in SCC No.4231/2018.5.The Petitioner is the original accused and the Respondent is theoriginal complainant in complainant bearing SCC No. 4231/2018instituted for the offence punishable under Section 138 of theNegotiable Instruments Act, 1881. ( for short N. I. Act).6.The Respondent/complainant filed a complaint under Section138 of N.I. Act alleging that the Petitioner / accused No. 1 was in needof money for his business and time to time he has provided hand loanto the accused. The details of payment is described in paragraph No.1of the complaint. For repayment of said hand loan, accused No.1 issueda cheque bearing No. 000021 for an amount of Rs. 50,000/- andanother cheque bearing No. 000019 for an amount of Rs. 4,80,000/-both drawn on HDFC Bank. On 31.10.2016, the present Petitioner /accused No.1 intimated on phone call that because of his illness hesuffered loss in his business and an amount of Rs. 5,30,000/- would bepaid in two months. After expiry of said period of two months from ..3..924-crwp-1669-2231.10.2016, the Respondent / complainant had approached accusedNo.1, but he was not in a position to pay the same. But accused No. 1assured about making the payment once the plot is sold. Accordingly,on 19.12.2017, the complainant received information from the accusedNo.1 about selling of plot. Thereafter said two cheques were taken backby accused No.1 and fresh two cheques for an amount of Rs. 2,40,000/-each drawn on Punjab National Bank, Aurangpura Branch, Aurangabadwere issued in favour of the complainant. Out of which, one chequewas bearer cheque and same was encashed. However, another chequewhich was issued on account payee bearing No. 168775 was presentedfor encashment on 20.03.2018, but said cheque was dishonoured forreason ‘INSTP STALE' and return memo dtd. 20.03.2018 was issued byHDFC Bank. Accordingly on 10.04.2018, the Respondent / complainantissued mandatory notice which was served upon the Petitioner /accused on 16.04.2018. However, the present Petitioner / accused didnot comply with the said notice. No doubt, on 18.06.2018, learnedMagistrate passed an order below Exhibit 1 and placed the matter forverification. However, again on the same day, the second order came tobe passed directing the complainant to argue the matter on themaintainability of complaint. On 26.07.2018, the learned JudicialMagistrate passed an order below Exhibit 6 and directed an inquiry ..4..924-crwp-1669-22under Section 202 of the Code of Criminal Procedure on the groundthat as per the return memo, the instrument was returned on account ofInstrument Stale. No doubt, Shri Jaideep Dattatraya Bankar, BranchManager of HDFC Bank examined at Exhibit 12, has deposed that theinstrument in question was referred for clearance to the concernedbank and the cheque return memo was received from Punjab NationalBank. Therefore, the authorized person of said bank would say aboutthe instrument, whether it is stale or not. Thereafter, on 03.03.2021,the learned Judicial Magistrate has passed an order holding that thecheque bearing No. 168775 was issued by Respondent No. 2 forpayment of loan obtained by accused No.1. The signature of accusedNo. 2 appearing on the said cheque. Therefore, only the drawer of thecheque would be prosecuted. The learned Magistrate further observedthat on perusal of the complaint, document as well as the affidavit filedby the complainant, it shows that all the essential ingredients of offencepunishable under Section 138 of the N.I. Act, prima facie made outagainst accused No. 2. Therefore, issue process was ordered against theaccused considering the guidelines framed by the Hon'ble SupremeCourt in the case of Indian Bank Association and others Vs. Union ofIndia and others, AIR 2014 Supreme Court 2528. Needless to say thatthe Petitioner / accused No.2 had approached before the Revisional ..5..924-crwp-1669-22Court under Section 397 of Cr.P.C. and had challenged the order ofissuance of process. However, on 11.10.2022, the learned SessionsJudge passed the impugned order and dismissed the revision,considering the ratio laid down in case of Indian Bank Association andothers vs. Union of India (cited supra).7.The learned counsel appearing for the Petitioner canvassed thaton 18.06.2018, initially, the learned Magistrate passed the order belowExhibit 1 and put the matter for verification, but on the same day againthe complainant was called upon to argue the matter on ground ofmaintainability of the complaint. Thereafter, the inquiry was conductedunder Section 202 of the Cr.P.C. by examining the witness BranchManager of HDFC Bank. However, from the evidence of the saidwitness it does not appear that the instrument was stale or not and thecomplainant has not examined the Branch Manager of Punjab NationalBank in which the cheque was drawn. So also, while passing the orderdated 03.03.2021, the learned trial Court failed to appreciate that thecomplainant has not made out the prima facie case and sufficientgrounds for issuance of process. Unless the learned Magistrate satisfiedhimself about existence of sufficient ground to proceed with thecomplaint, the process could not have been issued. Therefore, theorder of issuance of process is itself illegal and bad in law. However, the ..6..924-crwp-1669-22learned revisional Court failed to consider the same, hence, prayed forquash and set aside the impugned orders.8. In support of his submissions, the learned counsel appearing forthe Petitioner placed reliance on the case of Mehmood Ul Rehman Vs.Khazir Mohammad Tunda and others (2015) 12 SCC 420, wherein theHon'ble Supreme Court has observed in paragraph Nos. 20 to 23 asunder :20. The extensive reference to the case law would clearly showthat cognizance of an offence on complaint is taken for thepurpose of issuing process to the accused. Since it is a process oftaking judicial notice of certain facts which constitute anoffence, there has to be application of mind as to whether theallegations in the complaint, when considered along with thestatements recorded or the inquiry conducted thereon, wouldconstitute violation of law so as to call a person to appearbefore the criminal court. It is not a mechanical process ormatter of course. As held by this Court in Pepsi Foods Limited V.Judicial Magistrate, (1998)5 SCC 749 : 1998 SCC (Cri)1400, toset in motion the process of criminal law against a person is aserious matter.21. Under Section 190(1)(b) of CrPC, the Magistrate has theadvantage of a police report and under Section 190(1)(c) ofCrPC, he has the information or knowledge of commission of anoffence. But under Section 190(1)(a) CrPC, he has only acomplaint before him. The Code hence specifies that “acomplaint of facts which constitute such offence”. Therefore, if ..7..924-crwp-1669-22the complaint, on the face of it, does not disclose thecommission of any offence, the Magistrate shall not takecognizance under Section 190(1)(a) CrPC. The complaint issimply to be rejected.22. The steps taken by the Magistrate under Section 190(1) (a)CrPC followed by Section 204 CrPC should reflect that theMagistrate has applied his mind to the facts and the statementsand he is satisfied that there is ground for proceeding further inthe matter by asking the person against whom the violation oflaw is alleged, to appear before the court. The satisfaction onthe ground for proceeding would mean that the facts alleged inthe complaint would constitute an offence, and whenconsidered along with the statements recorded, would, primafacie, make the accused answerable before the court. No doubt,no formal order or a speaking order is required to be passed atthat stage. The Code of Criminal Procedure requires speakingorder to be passed under Section 203 CrPC when the complaintis dismissed and that too the reasons need to be stated onlybriefly. In other words, the Magistrate is not to act as a postoffice in taking cognizance of each and every complaint filedbefore him and issue process as a matter of course. There mustbe sufficient indication in the order passed by the Magistratethat he is satisfied that the allegations in the complaintconstitute an offence and when considered along with thestatements recorded and the result of inquiry or report ofinvestigation under Section 202 CrPC, if any, the accused isanswerable before the criminal court, there is ground forproceeding against the accused under Section 204 CrPC, byissuing process for appearance. The application of mind is bestdemonstrated by disclosure of mind on the satisfaction. If there ..8..924-crwp-1669-22is no such indication in a case where the Magistrate proceedsunder Sections 190/204 CrPC, the High Court under Section482 CrPC is bound to invoke its inherent power in order toprevent abuse of the power of the criminal court. To be called toappear before criminal court as an accused is serious matteraffecting one’s dignity, self respect and image in society. Hence,the process of criminal court shall not be made a weapon ofharassment.23. Having gone through the order passed by the Magistrate, weare satisfied that there is no indication on the application ofmind by the learned Magistrate in taking cognizance andissuing process to the appellants. The contention that theapplication of mind has to be inferred cannot be appreciated.The further contention that without application of mind, theprocess will not be issued cannot also be appreciated. Thoughno formal or speaking or reasoned orders are required at thestage of Section 190/204 CrPC, there must be sufficientindication on the application of mind by the Magistrate to thefacts constituting commission of an offence and the statementsrecorded under Section 200 CrPC so as to proceed against theoffender. No doubt, the High Court is right in holding that theveracity of the allegations is a question of evidence. Thequestion is not about veracity of the allegations; but whetherthe respondents are answerable at all before the criminal court.There is no indication in that regard in the order passed by thelearned Magistrate.”9.He further relied on the case of Amresh Kumar Dhiraj and OthersVersus State of Jharkhand and another, 2019 SCC online Jhar 2775, ..9..924-crwp-1669-22wherein it has been held as under, “25. The order taking cognizance under Section 190 Cr.P.C. andorder issuing process under Section 204 Cr.P.C., can very well acomposite order but as observed, the application of mind wouldbe different in both cases. This application of mind must bereflected in the order itself. The order should not bemechanical. Magistrate has to mention at least that there aresufficient materials to proceed against the persons and whatare the prima-facie materials to proceed against them. He neednot pass a detail judgment evaluating the materials, which arebefore him. The detail reasons as to why he is takingcognizance or issuing process are not to be mentioned but atleast what are the bare minimum prima-facie materials againstthe accused-petitioners should be mentioned in the orderissuing summons and prima facie what offence is alleged, in theorder taking cognizance.26. Applying the aforesaid principle, while going through thisimpugned order, I find that though the Magistrate has mentionthat there are statements of the witnesses, but what are theprima-facie materials to proceed against these petitioners andothers have not been whispered. In a most mechanical manner,in one line, this impugned order has been passed summoningthe accused. The Hon’ble Supreme Court in the case of “S.M.S.Pharmaceuticals Ltd.” and “Ramdev Food Products PrivateLimited” (Supra) has held that summoning an accused is a veryserious matter and has got far reaching implications on theperson who has been summoned.10.Per contra, the learned counsel appearing for the Respondentsupported the findings recorded by both the Courts below and submits ..10..924-crwp-1669-22that while passing the order dated 03.03.2021, the learned JudicialMagistrate First Class considered the transactions between thePetitioner / accused and the Respondent / complainant as well asissuance of the instrument in question for repayment of hand loan. Thelearned trial Court also considered that the cheque signed by theaccused No. 2, therefore, only drawer of the cheque can be prosecutedand declined to issue process as against the accused No.1 who is theson of accused No. 2 and said fact was considered by the learnedrevisional Court. Therefore, the concurrent findings recorded by boththe Courts below need no interference by this Court. Therefore, itprima facie shows that the learned trial Court complied with theprovisions of Section 204 and issued process as against the presentPetitioner and no interference is called out at the hands of this Court.Hence prayed to dismiss the Petition.11.Needless to say that, the Respondent /complainant specificallymade averments in his complaint about issuance of mandatory noticeon 10.04.2018 and served upon the present Petitioner / accused on16.04.2018. However, the Petitioner / accused did not comply with thesaid notice. As per the provisions of Section 138 of the N.I. Act, themandatory notice is required to be issued with an intention to give aproper and sufficient opportunity to the drawee of the cheque. ..11..924-crwp-1669-22However, in the case in hand, after going through the impugnedjudgment, it appears that though the present Petitioner / accusedserved with the mandatory notice, but he never replied the said noticeand not raised any specific defence. The issue, whether the instrumentin question was stale cannot be decided at this juncture in absence ofsubstantial evidence. 12.It shows that the learned revisional Court considered the case ofthe Indian Bank Association and others Vs. Union of India and others,AIR 14 SC 2528 and the case of Dr. Abdul Gaffar Quadri s/o AbdulRazzak Vs. State of Maharashtra and another in Criminal ApplicationNo. 2883 of 2013 and 2884 of 2013 and held that the trial Courtissued the process after compliance of the mandatory provisions of lawcontemplated under Section 202 as well as 204 of Cr.P.C. and dismissedthe revision which does not appear to be illegal and bad in law and nosubstantial grounds are set out to interfere with the said matter.13.Hence, the present Petition is dismissed. 14.Rule is discharged. (Y. G. KHOBRAGADE, J.) shp