Criminal Petition No. 1916 of 2023 · The High Court
Case Details
- 1 - NC: 2025:KHC:16808 CRL.P No. 1916 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ CRIMINAL PETITION NO. 1916 OF 2023 (482(Cr.PC) / BETWEEN: 528(BNSS)) MRS. PRAJAKTA BHANUDAS MORE AGED ABOUT 37 YEARS, R/AT: PRAJAKTA BANGALOW, NO.4752/1/1, PLOT NO.10, MANISHA NAGAR, NEAR PRADNYA SCHOOL, IN FRONT OF NAGAR VIKAS VIBHAG PANDHARPUR NAGAR PARSHID, PANDHARPUR TALUK, DISTRICT SOLAPUR, MAHARASHTRA-413 304. (BY SRI. NAVEED AHMED, ADVOCATE) AND: MRS. GAIKWAD ROOPALI MAHADEO AGED ABOUT 36 YEARS, W/O JAYANT DIPAK BOKEFODE, R/AT: 5/40, SHIVAJI NAGAR MODI, SOLAPUR NORTH SOLAPUR, MAHARASHTRA-413 001. ALSO AT: #5, 10TH CROSS, 2ND MAIN, THYAGARAJANAGAR, BENGALURU-560 070. Digitally signed by LAKSHMI T Location: High Court of Karnataka …PETITIONER (BY SMT. ROOPALI MAHADEO, PARTY-IN-PERSON REP. BY THE GPA HOLDER JAYANT DIPAK BOKEFODE) …RESPONDENT - 2 - NC: 2025:KHC:16808 CRL.P No. 1916 of 2023 THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE PRIVATE COMPLAINT AT ANNEXURE-A, AND THEREBY THE PROCEEDINGS IN CRIMINAL CASE i.e C.C.NO.35527/2022 PENDING ON THE FILE OF THE XVI ADDL. CHIEF METROPOLITAN MAGISTRATE COURT, BENGALURU (16- ACMM) FOR THE OFFENCES U/SEC. 138 OF N.I. ACT, AT ANNEXURE-B. THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 20.03.2025, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: HON'BLE MR JUSTICE MOHAMMAD NAWAZ CAV ORDER In this petition, petitioner is seeking the following prayer: “Quash the private complaint at Annexure-A, and thereby the proceedings in criminal case i.e. CC No.35527/2022 pending on the file of the XVI Addl. Chief Metropolitan Magistrate Court, Bengaluru (16- ACMM) for the offences U/Sec.138 in NI Act, at Annexure-B.” - 3 - NC: 2025:KHC:16808 CRL.P No. 1916 of 2023 2. Heard both sides and perused the material on record. 3. Respondent filed a private complaint against the petitioner, before the Court of XVI Additional Chief Metropolitan Magistrate at Bengaluru in PCR No.13694/2022, alleging an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (‘N.I. Act’ for short). 4. The gist of the complaint is as under:- Complainant is the wife of Jayant Dipak Bokefode. The complainant, her husband and the accused are acquainted since 2011 and were working together as lecturers at Shree Vithal Education and Research Institute at Maharashtra till 2015. Based on the said acquaintance, accused sought for hand loan/financial help as her father met with an accident and went into coma. Accused requested money for her father’s medical expenses, other family needs, for her brother’s education and career settlement. - 4 - NC: 2025:KHC:16808 CRL.P No. 1916 of 2023 5. As per complaint averments, a total sum of Rs.56,45,000/- was given to the accused, out of which a sum of Rs.26,27,096/- was repaid and there was due, a sum of Rs.30,18,504/-. It is stated, when the complainant demanded for repayment of the above said amount and after several requests, accused as a part payment issued two cheques bearing No.223943 dated 23.06.2022 for Rs.2,87,200/- and cheque bearing No.223942 dated 23.06.2022 for Rs.27,12,800/- both drawn on Axis Bank, Latur Branch, Maharashtra – 413531. The said cheques when presented for encashment to the banker M/s Axis Bank, BSK Branch, Bengaluru, were returned dishonored with endorsements ‘funds insufficient’ on 23.06.2022 and 28.06.2022 respectively. When the complainant intimated the same to the accused, she evaded the complainant stating evasive replies. Hence, the complainant and her husband issued legal demand notice dated 27.06.2022, which was served on the accused on 01.07.2022. The accused replied to the legal notice stating that she has no liability towards the complainant and the cheques were - 5 - NC: 2025:KHC:16808 CRL.P No. 1916 of 2023 misused. Since, the amount was unpaid, complaint was filed. 6. The private complaint and the proceedings before the trial Court are sought to be quashed on the following grounds: The complaint is not maintainable either on facts or in law and it is filed with an ulterior motive to harass the petitioner. If there was any genuine claim, complainant must have presented the impugned cheque where she actually resides, but she chose to present the cheques in Bengaluru City. Petitioner has replied to the impugned notice and denied all the allegations, as the complaint was filed by suppressing the facts. Accused is residing outside
Facts
the jurisdiction of the trial Court and therefore, the learned trial Court ought to have inquired into the matter before issuance of summons, which was not done and therefore, the proceedings are vitiated for non-compliance of the provisions of law. - 6 - NC: 2025:KHC:16808 CRL.P No. 1916 of 2023 7. The grounds urged by the learned counsel for petitioner that the complaint is filed with an ulterior motive to harass the petitioner and there is no genuine claim etc., cannot be accepted at this stage, as the proceedings are pending before the trial Court, wherein both the parties would get ample opportunity to prove their respective claim. 8. In so far as the contention raised that all the transactions took place in Maharashtra and the complainant is also a resident of Maharashtra and therefore, the complainant ought to have presented the impugned cheque where she actually resides, does not hold water. The law contemplates that before presenting the complaint the procedure prescribed under Section 138 of N.I. Act shall be complied. It is not in dispute that there is compliance of the said provision. Secondly, as the complainant is presently residing in Bengaluru, cheque was presented in Bengaluru. The dishonor of cheque when presented to the complainant’s bank in Bengaluru, - 7 - NC: 2025:KHC:16808 CRL.P No. 1916 of 2023 where she maintains an account, has given raise to a cause of action to present the complaint in Bengaluru. 9. The Hon’ble Apex Court in Bridgestone India Private Limited v. Inderpal Singh reported in (2016) 2 SCC 75 has held that, Section 142(2)(a) of the N.I. Act vests jurisdiction for initiating proceedings for the offence under section 138 of the Act, inter alia, in the territorial jurisdiction of the Court, where cheque is delivered for collection through an account of the branch of the bank where the payee or holder in due course maintains an account.
Legal Reasoning
whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. 10. Section 202 CrPC was amended by the Code of Criminal Procedure (Amendment) - 12 - NC: 2025:KHC:16808 CRL.P No. 1916 of 2023 Act, 2005 and the following words were inserted: "and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction." The notes on clauses for the abovementioned amendment read as follows: "False complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause seeks to amend sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused." The amendment has come into force w.e.f. 23-6-2006 vide Notification No. S.O. 923(E) dated 21-6-2006. - 13 - NC: 2025:KHC:16808 CRL.P No. 1916 of 2023 11. We are of the view that the High Court has correctly held that the abovementioned amendment was not noticed by the CJM, Ahmednagar. The CJM had failed to carry out any enquiry or order investigation as contemplated under the amended Section 202 CrPC. Since it is an admitted fact that the accused is residing outside the jurisdiction of the CJM, Ahmednagar, we find no error in the view taken by the High Court. 12. All the same, the High Court instead of quashing the complaint, should have directed the Magistrate to pass fresh orders following the provisions of Section 202 CrPC. Hence, we remit the matter to the Magistrate for passing fresh orders uninfluenced by the prima facie conclusion reached by the High Court that the bare allegations of cheating do not make out a case against the accused for issuance of process under Section 418 or 420 IPC. The CJM will pass fresh orders after complying with the procedure laid down in Section 202 CrPC, within two months from the date of receipt of this order.” - 14 - NC: 2025:KHC:16808 CRL.P No. 1916 of 2023 14. It is rightly contended by the respondent that on the ground of non-compliance of Section 202(1) of Cr.P.C., quashing of the complaint or entire criminal proceeding is legally untenable. In the above judgment, the Hon’ble Apex Court has made it clear that the High Court instead of quashing the complaint, should have directed the Magistrate to pass fresh orders following the provisions of Section 202 of Cr.P.C. 15. For the foregoing reasons, it is just and necessary to direct the learned Magistrate to pass fresh orders on the complaint, following the provisions of Section 202 of Cr.P.C. Hence, the following:
Arguments
10. In so far as the contention raised by the learned counsel for petitioner that the learned trial Court ought to have inquired into the matter before issuing summons, as the accused is residing out of the jurisdiction of trial Court, it is relevant to refer to Section 202 of Cr.P.C., which reads as under: “202. Postponement of issue of process.- - 8 - NC: 2025:KHC:16808 CRL.P No. 1916 of 2023 (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, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] [Inserted by Act 25 of 2005, Section 19 (w.e.f. 23-6-2006).] 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. - 9 - NC: 2025:KHC:16808 CRL.P No. 1916 of 2023 (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 Court on an officer- in-charge of a police station except the power to arrest without warrant.” 11. The above provision makes it clear that when any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under Section 192, may, if he thinks fit and shall in a case where the accused is residing at a place beyond the area in which he exercises its jurisdiction, postpone the issue of process against the accused, and either inquire into the case himself or direct - 10 - NC: 2025:KHC:16808 CRL.P No. 1916 of 2023 the investigation to be made by the 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 etc. 12. In the present case, it is not in dispute that the accused resides outside the jurisdiction of trial Court, where the complaint is presented. Hence, the learned Magistrate ought to have followed the procedure contemplated under Section 202(1) of Cr.P.C., and before issuance of process against the accused, conducted an inquiry into the case himself, for the purpose of deciding whether or not there is sufficient ground for proceeding. 13. In National Bank of Oman v. Barakara Abdul Aziz and another reported in (2013) 2 SCC 488 at para 9 to 12, the Apex Court has held as under:- “9. The duty of a Magistrate receiving a complaint is set out in Section 202 CrPC and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a criminal court. The scope of - 11 - NC: 2025:KHC:16808 CRL.P No. 1916 of 2023 enquiry under this section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. Investigation under Section 202 CrPC is different from the investigation contemplated in Section 156 as it is only for holding the Magistrate to decide whether or not there is sufficient ground for him to proceed further. The scope of enquiry under Section 202 CrPC is, therefore, limited to the ascertainment of truth or falsehood of the allegations made in the complaint: (i) on the materials placed by the complainant before the court; (ii) for the limited purpose of finding out
Decision
ORDER (i) Petition is allowed-in-part. (ii) The order passed by the learned Magistrate issuing summons to the accused is set aside. (iii) The matter is remitted back to the learned Magistrate for passing fresh orders after following the - 15 - NC: 2025:KHC:16808 CRL.P No. 1916 of 2023 procedure laid down in Section 202 of Cr.P.C., and to proceed in accordance with law. (iv) No observations are made on the merits of the case. Sd/- (MOHAMMAD NAWAZ) JUDGE HB List No.: 1 Sl No.: 1 CT:ar