The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.2138 of 2024 (In the matter of an application under Section 482 of the Criminal Procedure Code, 1973) Satyabadi Sahu and another ……. Petitioners -Versus- Chitta Ranjan Panda ……. Opposite Party the Petitioners For Advocate
Legal Reasoning
<Counsel for the complainant is present and filed Xerox copy of cheque along with original one for verification, original cheque returns memos, original postal receipt, copy of advocate notices and court fee worth of Rs.1000/- only. As the offence U/s. 138 of N.I. Act is based upon documents, inquiry U/s. 202 of Cr.P.C. was through verification of documents only. Now on perusal of the above mentioned materials which reveals that, there exists prima facie materials to proceed in this case against the accused persons namely 1. Satyabadi Sahu & 2. Suresh Kumar Sahu U/s. 138 of N.I. Act. Thus, cognizance of the said offence is taken. Hence issue summon to the accused persons. Put up on 06.10.2023 for appearance.= case this in 3. Perusal of the aforementioned order, makes it abundantly clear that no inquiry under Section 202 Cr.P.C. was undertaken by recording pre-summoning evidence of the complainant and/or any Page 2 of 8 other witnesses rather the cognizance has been taken by the learned Court below only on the basis of verification of the documents. 4. Heard Mr. Acharya, learned counsel for the petitioners and Mr. Pujari, learned counsel for the complainant/opposite party. 5. Mr. Acharya, learned counsel for the petitioners 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 (SC) 361 to substantiate his submissions. He has emphasized paragraphs-6 & 7 of the said judgment, which reads as under:- to to be <6. On the basis of Order Sheet of the Court of Magistrate it has been shown that initially summons were ordered the accused on issued 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 therefore an enquiry or investigation Page 3 of 8 may be 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 is deciding whether or not <there sufficient ground for proceeding: Provided………= (Emphasis supplied) 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 for proceeding. It is to avoid unnecessary 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.= 6. Mr. Acharya, learned counsel for the petitioners has further relied upon one of the order of the coordinate Bench of this Court passed on 09.07.2021 in CRLMC No.3347 of 2018. In that case as Page 4 of 8 well, the similar procedure was adopted by the trial Court while taking cognizance. The coordinate Bench of this Court by relying upon the judgment of the Hon’ble Supreme Court in Suo-Motu Writ Petition (Crl.) No.2 of 2020 has remanded the matter back to the trial Court to afford an opportunity to the complainant to record the initial statement. Relevant would be to reproduce paragraphs-5 & 6 of the said order:- <5. Admittedly, the accused-petitioner is residing at Village- Podingi under Hinjili Police Station which is beyond the area of jurisdiction of the learned J.M.F.C., Aska, and in such a case, in view of the incorporation made in Section 202 of Cr.P.C. by way of amendment, the learned J.M.F.C., Aska ought to have conducted an enquiry before issuing process against the accused-petitioner. Needless to mention that, as per the provision of Section 145 of the N.I. Act, the required evidence could have been given by the complainant on affidavit for the purpose of enquiry under Section 202 of Cr.P.C. In that view of the provisions of law, the learned J.M.F.C., Aska could not have proceeded with the case without conducting an enquiry under Section 202(1) of Cr.P.C. Reliance in this regard can be placed on a Constitution Bench decision of the Apex Court rendered in Suo-Motu Writ Petition (Crl.) No.2 of 2020. 6. For the reason aforesaid, I allow this CRLMC and remit back the matter to the Court concerned with a direction to the complainant-opposite party Page 5 of 8 to file evidence on affidavit for the purpose of enquiry under Section 202 of Cr.P.C. adhering to the law laid down by a Constitution Bench of the Apex Court rendered in Suo-Motu Writ Petition (Crl.) No.2 of 2020 and in accordance with the law. Since the matter is being dragged since long, it is hoped that the Magistrate concerned shall conclude the proceeding within six months of receipt of copy of this order. The parties are directed to cooperate with the same=. then proceed 7. Per contra, Mr. Pujari, learned counsel for the complainant/ opposite party has vehemently opposed the prayer made by the petitioners on various grounds particularly on the ground of maintainability of the present petition. He contended that the petitioners have alternate remedy of filing Criminal Revision instead of resorting to the inherent jurisdiction of this Court. To substantiate his stand, he has relied upon the judgment of the Hon’ble Supreme Court in the case of A. S. Pharma Pvt. Ltd. vrs. Nayati Medical Pvt. Ltd. and Ors., reported in 2024 (II) OLR (SC) 721. On merits, although he has made specific point to question the prayer of the petitioners, but primarily he sought dismissal of the petition only on the ground of maintainability. Mr. Pujari, submitted that the Page 6 of 8 petitioners should be relegated to resort to revisional remedy instead of entertaining the present petition. 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 pre- summoning 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 the impugned order dated 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 to the complainant to record the pre- summoning/initial statement under Section 202 Cr.P.C. before Page 7 of 8 issuance of summons to the petitioners. Thereafter, the learned trial Court shall proceed with the complaint in accordance with law. 9. Needless to note that, the trial for commission of offence under Section 138 of the N.I. Act mandated to be completed within the stipulated time framed as prescribed under the statute. Therefore, it is expected that the trial Court would do well to see that the case is
Arguments
: Mr. Manoranjan Acharya, For the Opposite Party : Mr. Basudev Pujari, Advocate CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 06.11.2024 : Date of Judgment: 23.12.2024 S.S. Mishra, J. 1. The petitioners have invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. assailing the order dated 10.08.2023 passed by the learned S.D.J.M., Berhampur in 1.C.C. Case No.329 of 2023, whereby cognizance of the offence under Section 138 of the N.I. Act has been taken against them. 2. Learned Court below has taken cognizance of the offence punishable under Section 138 of the N.I. Act against the petitioners on the complaint and relying upon the documents enclosed with the said complaint without conducting an inquiry under Section 202 Cr.P.C. For ready reference, the impugned order dated 10.08.2023 passed by the learned Court below is reproduced as under:- conducted
Decision
disposed of as expeditiously as possible. 10. With this aforesaid observation, the CRLMC is disposed of. S.S. Mishra (Judge) The High Court of Orissa, Cuttack Dated the 23rdDecember, 2024/ Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Reason: Authentication Location: High Court of Orissa Date: 24-Dec-2024 13:11:14 Page 8 of 8