The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK Laxmikanta Sahu CRLMC No. 2058 of 2024 …. Petitioner Mr. M. Acharya, Advocate -versus- Santosh Kumar Muni …. Opposite Party
Legal Reasoning
Mr. B. Pujari, Advocate CORAM: JUSTICE SIBO SANKAR MISHRA
Decision
ORDER 20.02.2025 Heard. The petitioner is aggrieved by the order dated Order No. 04. 1. 2. 29.06.2023 passed by the learned S.D.J.M., Berhampur in 1CC Case No.217 of 2023 initiated by the opposite party on the alleged commission of offence punishable under Section 138 of N.I.Act. 3. Learned counsel for the petitioner has challenged the order precisely on the ground that the procedure contemplated under Section 202 Cr.P.C. has not been complied by the court below while taking cognizance of the offence. He has relied upon the judgment of this Court passed in CRLMC No. 2138 of 2024 dated 23.12.2024. He has drawn my attention to paragraphs-5 and 8 of the judgment, which reads as under:- Page 1 of 5 for “5. Mr. Acharya, the petitioners learned counsel submitted that the procedure adopted by the learned Court below by taking cognizance of the offence under Section 138 of the N.I. Act is contrary to establish the procedure recognized under law. He has relied upon the judgment of the Hon’ble Supreme Court in the case of K.S. Joseph vs. Philips Carbon Black Ltd. & Anr., reported in (2016) 64 OCR to substantiate his submissions. He has (SC) 361 emphasized paragraphs-6 & 7 of the said judgment, which reads as under:- that it has been shown “6. On the basis of Order Sheet of the Court of Magistrate initially summons were ordered to be issued to the accused on 05.12.2006 after recording a single sentence that the complainant was represent. Since proper steps were not taken summons appear to have been re- issued at the correct address on 22.10.2011. The orders of the Magistrate do not show any application of mind to the issue of delay nor has delay been condoned before issuance of summons. The Order Sheet does not show any application of mind to the fact that the accused was shown to be residing at a place beyond his jurisdiction and investigation may be therefore an enquiry or required on account of amendment in Section 202 of the Cr.P.C. inserted by the Act 25 of 2005, effective from 23.06.2006. The relevant part of Section 202 is reproduced hereinbelow:- “202. Postponement of issue of process- (1) 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 his jurisdiction 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 ………….. “ (Emphasis supplied) Page 2 of 5 7. The amendment has a purpose in requiring the concerned Magistrate to postpone the issue of process against the accused if he is residing at a place beyond the area of his jurisdiction and to hold an enquiry or direct an investigation by a police officer or any other person for the purpose of deciding whether or not there is sufficient ground to avoid unnecessary for proceeding. harassment to the proposed accused. In such an enquiry, the Magistrate may take evidence of witness on oath but in view of Section 145 of the Act, complainant’s evidence on affidavit will also be permissible for the purpose of such enquiry.” is It 8. I have carefully gone through the documents placed on record and perused the impugned order dated 10.08.2023 in the light of the judgments cited by the parties at the Bar. I have no reason to disagree with the contention raised by the petitioners through Mr. Acharya, learned counsel. It appears from the impugned order that the trial Court has not resorted to the procedure contemplated under Section 202 Cr.P.C. and by dispensing with the recording of the presummoning evidence proceeded to take cognizance of the offence under Section 138 of the N.I. Act on the basis of the documents form part of the complaint. Therefore, the impugned order is not sustainable. Accordingly impugned order dated the 10.08.2023 passed by the learned S.D.J.M., Berhampur in 1.C.C. Case No.329 of 2023 is set aside and the matter is remitted back to the learned trial Court for affording opportunity the presummoning/initial statement under Section 202 Cr.P.C. before issuance of summons to the petitioners. Thereafter, the learned trial Court shall proceed with the complaint in accordance with law.” complainant record the to to 4. Mr. Pujari, learned counsel for the opposite party vehemently opposed the prayer made by the petitioner on the ground that indeed the present petition is not maintainable and the petitioner ought to have preferred a revision against the impugned order. Page 3 of 5 5. I have considered the rival contentions of both the parties and of the opinion that on the ground of technicality even if the petitioner is relegated to the revisional jurisdiction to challenge the impugned order, the only fall back would be to delay the proceeding initiated by the opposite party under Section 138 of N.I. Act against the petitioner. 6. Section 143 (2) of N.I. Act mandate that the cases of present nature needs to be disposed of as expeditiously as possible within a period of six months. Keeping in view the mandate of law, I am of the considered view that the technical objection raised by the opposite party needs to be cured at any stage, for that the proceeding shall not delayed. Hence, I allow the petition and set aside the order dated 29.06.2023 passed by the learned S.D.J.M., Berhampur in 1CC Case No.217 of 2023 and remit back the matter to the learned trial court for affording opportunity to the complainant to record the pre-summoning/initial statement under Section 202 Cr.P.C. and the trial court shall proceed in accordance with law thereafter. 7. In view of the mandatory provision under Section 143 (2) Cr.P.C., I am inclined to direct the trial court to do well to see that the proceeding is disposed of as expeditiously as possible, preferably within a period of three month hence. Page 4 of 5 8. With the aforesaid observation, the CRLMC is disposed of. (S.S. Mishra) Judge Ashok Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Reason: Authentication Location: High Court of Orissa Date: 20-Feb-2025 18:54:12 Page 5 of 5