Allowed

Narasimhan Krishnan v. the State of Maharashtra and Ors.

Bombay HC26 Nov 2014WP/1283/2014

Case brief

AI extract

What is this about?

The petitioner challenged the issuance of process in a cheque bounce case, arguing it violated Section 202 CrPC as he was an outsider. The Court held that holding an inquiry under Section 202 CrPC is mandatory for accused residing outside the Magistrate's jurisdiction. Finding no inquiry was held, the process was set aside to be remanded for a fresh inquiry.

What did the court decide?

Impugned order issuing process set aside. The learned Magistrate directed to hold an inquiry under Section 202 CrPC.

Narasimhan Krishnan Vs the State of Maharashtra and Ors. — Cheque Dishonour | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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rpa

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CRIMINAL WRIT PETITION NO.1283 OF 2014

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Narasimhan Krishnan .. Petitioner Vs. The State of Maharashtra & Ors. .. Respondents

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Mr.Mahesh Londhe, Mr. Sanjay Udeshi & Ms.Radha Ved i/b. M/s. Sanjay Udeshi & Co., Advocate for the Petitioner. Mrs.M.R. Tidek, A.P.P. for Respondent – State. Ms.Tripti R. Shetty, Advocate for Respondent No.2.

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CORAM : ABHAY M. THIPSAY, J.

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DATED : NOVEMBER 26, 2014.

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P.C. :

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Rule.

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2 By consent, Rule made returnable forthwith. By consent,

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heard finally.

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3 The petitioner is one of the accused i.e. the accused no.5

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in Criminal Case No.3410/SS/2012 pending before the Metropolitan Magistrate 23^rd Court at Esplanade. The case is in respect of the offence punishable under Section 138 of the Negotiable Instruments

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Act, 1881 (hereinafter referred to as 'the N.I. Act', for short). The

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respondent no.2 herein is the complainant in the said case. The petitioner is aggrieved by the order issuing process against him. He had approached the Court of Sessions challenging the order issuing process by filing a revision application, but the same came to be dismissed. Under these circumstances, the petitioner has approached this Court invoking its constitutional jurisdiction and praying that the order issuing process against him, be quashed.

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4 The petitioner has raised a number of contentions in support of his claim that no process should have been issued against him. However, in view of the fact that the petition ought to succeed on the limited ground of the process having been issued without holding an inquiry under Section 202 of the Code of Criminal Procedure, it is not necessary to go into the other contentions. This is particularly so because the question as to whether the Metropolitan Magistrate at Andheri has territorial jurisdiction to entertain the complaint and deal with the alleged offence, is also bound to arise in the matter.

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5 The learned counsel for the petitioner submitted that though the Magistrate had directed an inquiry under Section 202 of the Code to be made, and though he had adjourned the case for that purpose, actually, no inquiry was held by the Magistrate and process

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came to be issued without holding the inquiry, as contemplated under Section 202 of the Code.

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6 It is not in dispute that the petitioner and even the other

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accused were residents of a place beyond the area within which the learned Metropolitan Magistrate exercises his jurisdiction. It has been held by the Supreme Court of India that the provisions regarding the holding of an inquiry under Section 202 of the Code in cases where an accused would be residing beyond the area within which the Magistrate exercises his jurisdiction, are mandatory. (See National Bank of Oman V/s. Barakara Abdul Aziz¹ and Udai Shankar Awasthi V/s. State of U.P. & Ors.² )

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7 The learned counsel for the respondent no.2 contended that an inquiry had actually been held by the learned Magistrate. According to her, an affidavit of original complainant came to be filed after the Magistrate had decided to hold an inquiry, and before the issuance of process, and that the taking of the affidavit on record amounts to holding an inquiry, as contemplated under Section 202 of the Code.

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1.2013(2) CR 1643(SC).

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(2013) 2 SCC 435.

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8 I have examined this aspect of the matter. It is not possible to accept the contention of the learned counsel for the respondent no.2.

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9 A perusal of the Roznama of the case, certified copy of which are annexed to the petition, indicates that the complaint was filed before the Magistrate on 29th November, 2012 , when the Magistrate adjourned the same to 14th January, 2013 for verification. On 14th January, 2013 , it was again adjourned for verification to 28th February, 2013, on the prayer of the learned counsel for the original complainant. On 28th February, 2013 , the verification statement of the original complainant was filed and the learned Magistrate adjourned the case to 4 th April, 2014 for inquiry under Section 202 of the Code. On 4 th April, 2013 , the learned Magistrate was absent. The board was discharged and the case was adjourned to 12th April, 2013 . On 12th April, 2014, the learned Magistrate was again on leave, but it appears that an affidavit of the original complainant was filed on that date before the Magistrate who was holding the charge of the concerned Magistrate. The matter was adjourned to 29th April, 2013 , on which date nothing appears to have happened, and the matter was adjourned to 10th June, 2013 . On 10th June, 2013 , the learned Magistrate passed

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an order issuing process against all the accused persons including the petitioner.

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10 I have gone through the said order. It does not even refer to the affidavit of the complainant filed before the Court on 12 th April, 2013. Even so, in view of the contentions advanced, I have gone through the affidavit, a copy of which is annexed to the petition. The same does not disclose any additional information.

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11 In the circumstances, it is not possible to hold that process came to be issued after holding an inquiry, as contemplated under Section 202 of the Code. That, holding of such inquiry is mandatory and failure to hold such inquiry vitiates the order issuing process, cannot be doubted or disputed – and has not been disputed – in view of the pronouncement of law made by the Supreme Court of India in the aforesaid two cases.

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12 The order issuing process is bad inasmuch as the same was passed without holding an inquiry under Section 202 of the Code though the petitioner and the other accused were residents of Sikandarabad and not of Brihanmumbai, where the learned Magistrate exercises his jurisdiction.

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13 Under these circumstances, the other contentions raised

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by the petitioner are not examined and the same are kept open.

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14 The petition is partly allowed.

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15 The impugned order is set aside.

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16 The learned Magistrate shall hold an inquiry in the

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matter, as contemplated under Section 202 of the Code and then decide whether or not there is sufficient ground for proceeding. It is clarified that the learned Magistrate need not do so, in case he decides to take action, as contemplated under Section 201 of the Code.

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17 The petition is disposed of accordingly.

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18 Rule is made absolute in the aforesaid terms.

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(ABHAY M. THIPSAY, J.)

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Narasimhan Krishnan v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

Narasimhan Krishnan v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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