A company director sought quashing of a cheque-dishonour prosecution for absence of a Section 202 inquiry. The Court held that omission alone does not vitiate cognizance and dismissed the petition, leaving the objection concerning the cheque's missing joint signature for trial.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 28TH DAY OF JUNE 2017/7TH ASHADHA, 1939
Crl.MC.No. 534 of 2017 ()
CC. NO.2831/2015 OF SPECIAL JUDICIAL FIRST CLASS MAGISTRATE COURT (N.I. ACT CASES), KOZHIKODE.
PETITIONER/ACCUSED NO.3:
E.K. JALEEL, S/O. KOYAN, INJAKKUDI HOUSE, NORTH EDATHALA, ALUVA P.O, ERNAKULAM DISTRICT.
BY ADV. SRI.BABU S. NAIR.
RESPONDENTS/STATE & COMPLAINANT:
1. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI- 682 031.
2. E.O. MIRSHAD, S/O.T.K. MAMMEDKOYA, MAYINKUTTY HOUSE, CHALIL BAZAR JUNCTION, PUTHIYANGADI P.O, KOZHIKODE DISTRICT, PIN -673 021.
R1 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY.
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/03/2017, THE COURT ON 28/06/2017 PASSED THE FOLLOWING:
rs.
Crl.MC.No. 534 of 2017
APPENDIX
PETITIONER'S ANNEXURES:-
ANNEXURE A TRUE COPY OF THE COMPLAINT FILED BY THE 21ND RESPONDENT AS CC.NO. 2831/2015 BEFORE THE SPECIAL JUDICIAL FIRST CLASS MAGISTRATE (NI ACT CASES) KOZHIKODE.
RESPONDENT'S ANNEXURES:- NIL.
//TRUE COPY//
P.S. TO JUDGE
rs.
ALEXANDER THOMAS, J.
==================
Crl.M.C.No. 534 of 2017
==================
Dated this the 28th day of June, 2017
O R D E R
The prayer in this Criminal Miscellaneous Case filed under Sec.482 of the Cr.P.C. is for an order from this Court to quash the entire proceedings in C.C.No. 2831/2015 on the file of the Special Judicial First Class Magistrate's Court (N.I.Act Cases), Kozhikode, on the ground that the cognizance in this case has been taken by learned Magistrate, without conducting the inquiry as contemplated under Sec. 202 of the Cr.P.C.
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and that the 2nd accused has issued cheque dated 13.6.2015 for an amount of Rs.35 lakhs drawn from the account of the 1st accused company and in favour of the complainant, which when presented had dishonoured on the reason “exceeds arrangement”. Thereafter the complainant had sent statutory demand notice by registered post in terms of Sec.138 proviso (b) calling upon the accused to pay the amounts covered by the cheque within 15 days from the date of receipt of the notice and the said notice was received by the 1st accused on 7.10.2015 and the notice sent to A-2 and A-3 were returned unserved with the endorsement, “unclaimed”. After complying with the statutory formalities, the instant complaint has been filed before the Special Judicial First Class Magistrate's Court (N.I. Act Cases), Kozhikode. It is further averred that immediately on filing the complaint, the learned Magistrate had taken cognizance of the complaint without even conducting an inquiry under Sec.202 of the Cr.P.C. and had straightaway issued summons to all the 3 accused in the complaint which was taken on file as C.C.No.2831/2015. It is contended by the petitioner that Anx.A complaint is not maintainable and further that the 2nd accused is not the solitary authorised signatory of the 1st accused company and that as per the instructions of the 1st accused company with their bank, the authorised signatories of the cheque drawn from the account of A-1 company is both A-2 and the petitioner (A-3). Further that if the
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signature of only one of the authorised signatory is there in the cheque of the company, the same will never be honoured as both signatures are necessary for valid cheque of the company. Thus it is contended that even going by the averments in the complaint, the cheque that was issued from the account of the company was not a valid one, which could not have been honoured in any view of the matter, irrespective as to whether or not sufficient balance was there in the account. Further that even as per the admitted averments in the complaint, the petitioner (A3) has not signed the dishonoured cheque. Thus the main contention raised by the petitioner is that the cheque in question is not a valid cheque on which no cognizance could have been taken by the learned Magistrate and further that all the 3 accused are residing beyond the territorial limits of the Magistrate court concerned and that therefore in view of the amendment brought in the provisions of Sec.202 in the Cr.P.C. as inserted by Sec. 19 of the Cr.P.C. (Amendment) Act, (Central Act, 25 of 2005) with effect from 23.6.2006, it was mandatory on the part of the learned Magistrate to have conducted an inquiry as contemplated in Sec.202 of the Cr.P.C. The petitioner would contend that the said inquiry is mandatory with effect from 23.6.2006 and that the impugned action of the magistrate in taking cognizance of the offence with the complaint without conducting such a mandatory inquiry under Sec.202 of the Cr.P.C. is illegal which would go to the root of the matter.
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Further that, had an inquiry been conducted by the learned Magistrate under Sec. 202 of the Cr.P.C. by examining the bank officials, it would have been very clear that the cheque is invalid one, without the signature of the petitioner (A-3) and that the petitioner cannot be prosecuted under any circumstances for the offence under Sec.138 of the N.I. Act on the basis of such an invalid cheque, which does not admittedly bear the signature of the petitioner, even though he is an authorised signatory and that only if both the signatures of accused 2 and 3 are appended in the cheque, can the signature be treated as a valid one.
Procedure provide as follows:
“Sec.190: Cognizance of offences by Magistrates.- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence--
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such
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offences as are within his competence to inquire into or try.
Sec. 200: Examination of complainant.- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses--
Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
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Sec. 202: Postponement of issue of process.- (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] 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--
(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness 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 Code on an officer in charge of a police station
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except the power to arrest without warrant.
Sec. 203: Dismissal of complaint.- If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.
Sec. 204: Issue of process.- (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be--
(2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provisions of Section 87.”
accused is residing at a place beyond the area in which he exercises his jurisdiction ” appearing in Sec.202(1) have been inserted by Sec.19 of the Code of Criminal Procedure (Amendment) Act, (Central Act 25 of 2005), with effect from 23.6.2006. This was found essential in the opinion of the Parliament, as false complaints were filed against persons residing at far off places in order to harass them and the note for amendment reads as
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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 subsection (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.”
follows:
“Sec.143: Power of Court to try cases summarily.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of Sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials:
Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one yea r and an amount of fine exceeding five thousand rupees:
Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.
(2) The trial of a case under this section shall, so far as practicable, consistently with the interests of justice, be continued from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing.
(3) Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint.
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Sec.145: Evidence on affidavit.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may,
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subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code.
(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.”
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evidence in any inquiry, trial or other proceedings under the Code. Reading the above said three provisions together, it clearly appears that the process to be issued on the complaint for the offence under S.138 is as per the procedure contained in the above said provisions read with the provision of the Code for such purpose which are not to be deemed or treated excluded by virtue of non - obstante clause in S.143 to 145.
of the Gujrat High Court that Secs.142 to 147 of the Negotiable Instruments Act lay down a special Code for the trial of offence under Chapter XVII of the N.I. Act and Secs.143 to 147 S.143 to 147 were inserted in the Act by the N.I. (Amendment and Miscellaneous Provisions) Act, 2002 to do away with all the stages and processes in a regular criminal trial that normally cause inordinate delay in its conclusion and to make the trial procedure as expeditious as possible, without in any way compromising on the right of the accused for a fair trial. Since the
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number of cases under Sec.138 of the N.I. Act is piling up in great multitude, the objective of the Parliament for fast and expeditious conclusion of trial in such cases was held to be a very important aspect as otherwise cases under the N.I. Act could continue to pile up giving rise to a huge and unbearable burden on the criminal court system. In para 22 of the decision in Modern Denim's case supra, the Gujrat High Court has also referred to the various directives issued by the Apex Court in Indian Bank Association & Ors. v Union of India reported in (2014) 5 SCC 590, paras 16, 18, 20, 22 and 23 thereof, which read as follows:
"16. Considerable time is usually spent for recording the statement of the complainant. The question is whether the Court can dispense with the appearance of the complainant, instead, to take steps to accept the affidavit of the complainant and treat the same as examination - in - chief. S.145(1) gives complete freedom to the complainant either to give his evidence by way of affidavit or by way of oral evidence. The Court has to accept the same even if it is given by way of an affidavit. Second part of S.145(1) provides that the complainant's statement on affidavit may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceedings. S.145 is a rule of procedure which lays down the manner in which the evidence of the complainant may be recorded and once the Court issues summons and the presence of the accused is secured, an option be given to the accused whether, at that stage, he would be willing to pay the amount due along with reasonable interest and if the accused is not willing to pay, Court may fix up the case at an early date and ensure day - to - day trial.
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Magistrate passes a specific order as to why the complainant is to be recalled. Such an order is to be passed on an application made by the accused or under S.145(2) of the Act suo moto by the Court. In summary trial, after the accused is summoned, his plea is to be recorded under S.263(g) Cr.P.C. and his examination, if any, can be done by a Magistrate and a finding can be given by the Court under S.263(h) Cr.P.C. and the same procedure can be followed by a Magistrate for offence of dishonour of cheque since offence under S.138 of the Act is a document based offence. We make it clear that if the proviso (a), (b) & (c) to S.138 of the Act are shown to have been complied with, technically the commission of the offence stands completed and it is for the accused to show that no offence could have been committed by him for specific reasons and defences.
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xxx xxx xxx
Maheswari v. M/s. Navbharat Tea Processing Pvt. Ltd. reported in 2011
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KHC 6343= 2011 CrLJ 2373 has held in para 45 thereof that in spite of the amended provisions contained in Sec. 202 of the Cr.P.C., there is no reason as to why a criminal court, if prima facie satisfied as to the existence of an offence under Sec.138 of the N.I. Act, cannot straightway proceed from Sec.200 to Sec.204 of Cr.P.C., and it is not necessary to compulsorily pass through Sec.202 so as to reach either Sec.203 or Sec.204 of Cr. P. C. and it is only in a scenario a Court of Magistrate fails to satisfy himself/herself regarding the existence of such a prima facie case, but does not think that such a case deserves to be dismissed, that under Sec.202 of the Cr.P.C., a court can postpone the issue of process and direct further inquiry or investigation under S.202(1) of Cr.P.C. That if the accused person resides at a place outside the territorial jurisdiction of that court of Magistrate, it is for the said court to inquire into the case himself or direct an investigation to be made by a police officer, etc. It is relevant to refer paras 45 and 46 of the said judgment of the Calcutta High Court in Biswanath's case supra, which read as follows:
“45. After taking into consideration the various provisions under Chapter XV of the Code, I do not find any reason as to why a learned Court if prima facie satisfied as to the existence of an offence cannot straightway proceed from S.200 to S.204 of Cr. P. C. I do not think it necessary to compulsorily pass through S.202 so as to reach either S.203 or S.204 of Cr. P. C. It is only when a Court of Magistrate fails to satisfy itself regarding the existence of a prima facie case but does not think that such a case deserves to be dismissed then and there under S.203 of Cr. P. C., a Court can postpone the issue of process and direct further investigation under S.202(1) of Cr. P. C. And, if the accused person resides at a place outside the territorial jurisdiction of that Court of Magistrate, it is for the said learned Court to enquire 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.
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“35. The aim of these provisions is to ensure a speedy trial and expeditious disposal of cases, which are found to have clogged the criminal justice system. If strict adherence in such cases where certain
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evidences can be led under the enabling provisions made under the Act is insisted upon then it would negate the requirement of expeditious disposal of the cases, which is the aim under the Act. Thus, the view expressed in the line of cases that enquiry as envisaged under the amended provisions of S.202 CrPC may not necessarily be insisted upon in those cases tried under the Act where the accused person resides outside the jurisdiction of the Magistrate is reasonable. However, the ratio of law laid down in S. K. Bhowmik's case (supra) and other line of decisions still will hold good and can not be taken to have been diluted in any manner in view of the observations made above. I am inclined to hold that the strict requirement of S.202 CrPC may not be the need in cases under the Act as that may tend to negate the very purpose of expeditious disposal of the cases under the Act and may also nullify the effect of special provisions made under the Act. The plea of the petitioner in all these petitions to quash the complaints and the summoning orders, thus, can not be accepted”
Dealing with the applicability of Sec. 202 inquiry provisions in the context
of the offence under Sec. 138 of the N.I. Act, the Bombay High Court in the judgment in ASR Systems Pvt. Ltd. v. Kimberly Clark Hygiene Products Pvt. Ltd. & Anr. reported in 2011 KHC 6505 = 2011 CrLJ 3558, has held that such provisions in Sec. 202 are directory in nature as far as the cases involving dishonour of cheque under Sec.138 of the N.I. Act are concerned. That the very purpose of Sec.202 is to avoid unnecessary inconvenience and harassment to accused, who may be living outside territorial jurisdiction of the court and documents including original cheques, return of the same as dishonoured, notices issued by the complainant and the verification statement to the effect that payment was not made in spite of notice, will all be sufficient materials for the learned Magistrate to take a decision on the matter of issuance of process and issuance of process as summons by the learned Magistrate for offence under Sec. 138 of the Negotiable Instruments Act, cannot be
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quashed merely on the ground of not conducting an inquiry under Sec. 202 of the Cr.P.C. Para 4 of the abovesaid decision of the Bombay High Court in ASR Systems' case supra, reads as follows:
“4. The learned counsel for the petitioner raised several grounds challenging the issuance of process. Firstly, according to the learned counsel, process was issued without following mandatory provision of making enquiry under S.202 of the Cr. P.C. when the accused are not situated outside the local jurisdiction of the Magistrate taking cognizance. According to him, in this case, both the accused persons are situated in Delhi while complaints were filed before J.M.F.C., Pune, therefore, it was mandatory to hold enquiry under S.202 Cr. P.C. before the process could be issued. The learned single Judge of this Court in Bansilal S. Kabra v. Global Trade Finance Ltd. 2010 (2) Bombay C.R. Criminal 754 held that provisions of S.202 about holding of enquiry before issuance of process when the accused is living outside the territorial jurisdiction of the Magistrate is directive and not mandatory. In another case, the learned single Judge of this Court held that the provision is mandatory but that application was rejected by the learned judge on the ground that the accused had come to the High Court at a belated stage. The learned counsel pointed out that the question has been referred to the larger Bench in view of two conflicting decisions. However, merely because question is referred to the larger bench, all the matters cannot be kept pending nor the proceedings can be stayed. The purpose of directing enquiry under S.202 Cr. P.C. is to avoid unnecessary inconvenience and harassment to the accused persons, who may be living outside territorial jurisdiction of the Court. However, where the contents of the complaint, verification statement and other documents produced along with the complaint make out prima - facie case for issuance of process, perusal of such material itself is preliminary enquiry and if the Court is satisfied that prima facie case is made out, process can be issued. Therefore, in my opinion, said provision in S.202 Cr. P.C. is directory in nature and merely because Magistrate has not recorded statements of several witnesses before issuing process, process cannot be quashed. In the present case, complainant had produced relevant documents including original cheques, documents about return of the same as dishonoured by the drawee bank, notices issued by the complainant to the accused, documents showing receipt of the same by the accused and the verification statement to the effect that payment was not made in spite of notice. In my opinion, this was sufficient material for the learned Magistrate to issue process.”
and 420 of the I.P.C. the Apex Court in the judgment in National Bank of Oman. v. Barakara Abdul Aziz & Anr. reported in (2013) 2 SCC 488, that there is no error in the impugned judgment of the Bombay High
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Court in that case and held that it was incumbent upon the learned Magistrate to conduct an inquiry, before issuing the process for those offences. In that case, the respondent accused was residing outside the territorial jurisdiction of the Chief Judicial Magistrate's Court concerned and it was held that the duty of a Magistrate receiving a complaint is set out in Sec. 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 and the scope of enquiry under Sec. 202 Cr.P.C. 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 and that the investigation under Sec. 202 Cr.P.C. is different from the investigation contemplated in Sec. 156 of the Cr.P.C., as the former is only to enable the Magistrate to decide whether or not there is sufficient ground for him to proceed further. Reference may be made to paras 8, 9 and 12 of the said judgment of the Apex Court in National Bank of Oman's case supra reported in (2013) 2 SCC 488, p.p.491-492., which read as follows:
“8. We find no error in the view taken by the High Court that the CJM, Ahmednagar had not carried out any enquiry or ordered investigation as contemplated under Section 202 CrPC before issuing the process, considering the fact that the respondent is a resident of District Dakshin Kannada, which does not fall within the jurisdiction of the CJM, Ahmednagar. It was, therefore, incumbent upon him to carry out an enquiry or order investigation as contemplated under Section 202 CrPC before issuing the process.
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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:
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the order sheet of the trial court does not disclose any application of mind either to the issue of delay or to the requirement of Sec. 202 of the
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Cr.P.C. and since the order of the learned Magistrate in issuing summons is clearly without due application of mind even on the crucial issue of delay, the second contention regarding applicability of Sec.202 of the Cr.P.C. was left open. Accordingly, the impugned order of the High Court
were set aside as well as the order of the learned Magistrate in taking cognizance and summoning the accused were set aside and remitted to the magistrate directing to reconsider the relevant facts of the complaint including the issue of delay condonation, in accordance with law as well as on the question as to the requirement of inquiry under Sec.202 of the Cr.P.C. and to pass fresh orders in accordance with law. So in that case,
the Apex Court has clearly left open the issue as to the applicability of Sec.202 of the Cr.P.C. in offence under Sec.138 of the Negotiable Instruments Act. Para 10 of the said decision in Philips Carbon's case, reads as follows:
"10. Learned counsel for the respondent-complainant could not place any material to counter the two submissions noted above. We have already noted earlier that the Order Sheet does not disclose any application of mind either to the issue of delay or to the requirement of S.202, Cr. P.C. Since the order of the Magistrate issuing summons is clearly without due application of mind to the issue of delay, we have not gone into the detailed consideration of the correctness of submission based upon S.202 of the Cr. P.C. and as to whether such requirement of enquiry or investigation is attracted even for offences under the Act. This question of law is therefore left open. But on the ground of non application of mind to the issue of delay and considering that the High Court has passed a summary order without even noticing the contentions advanced on behalf of the appellant, we set aside the impugned order of the High Court as well as the order of cognizance summoning the accused passed by the learned Magistrate. The Magistrate is directed to re-consider the relevant facts of the Complaint Case including the issue of delay and its condonation in accordance with law as well as the requirement of enquiry etc. under S.202 of the Cr. P.C. and pass fresh orders in accordance with law. The appeals stand allowed to the aforesaid extent."
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However, it may be noted that the Apex Court in this case has overruled the contention of the appellant therein that there was illegality in the conduct of Sec. 200 preliminary inquiry insofar as the complainant was not examined on oath, but that only his affidavit in terms of Sec. 145(1) of the Negotiable Instruments Act was recorded, etc. In paras 4 and 5 of
the said judgment it has been held as follows:
"4. The non obstante clause in sub-section (1) of S.145 is selfexplanatory and over-rules the requirement of examination of the complainant on solemn affirmation under S.200 of the Cr. P.C. Now the complainant is entitled to give his evidence on affidavit and subject to all just exceptions, the same has to be read in evidence in any enquiry, trial or other proceeding under the Cr. P.C. This view is also supported by the judgment of this Court in the case of Mandavi Co-operative Bank Ltd. v. Nimesh B. Thakore (2010 (1) KLT 321 (SC) = (2010) 3 SCC 83). No doubt this judgment was in a different factual scenario but this Court went into details of the amendment of 2002 including S.145 and in paragraph 18 it also noted the Statement of Objects and Reasons appended to the Amendment Bill. Inter alia, the objects included “to prescribe procedure for dispensing with preliminary evidence of the complainant”.
the Cr.P.C. in the judgment in Vijay Dhanuka & Ors. v. Najima Mamtaj & Ors. reported in (2014) 14 SCC 638. The said case involved issuance of summons in a complaint alleging commission of offence under Secs.323, 380 and 506 read with Sec. 34 of the I.P.C. The order issuing process in that case was challenged by the accused persons by filing application under Sec.482 of the Cr.P.C. before the Calcutta High Court on the ground the said decision of the learned Magistrate is illegal as far as the mandatory inquiry under Sec.202 of the Cr.P.C. was not conducted, even
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though the accused persons are residing outside the territorial jurisdiction of the learned Magistrate. Their Lordships of the Supreme Court in Vijay Dhanuk's case supra have held in para 12 thereof that the word, “shall” ordinarily means mandatory, but some times taking into account the context or intention, it can be held to be directory and use of the word, “shall” in all circumstances is not decisive. However, that the expression “shall” appearing in Sec.202(1) of the Cr.P.C. prima faice makes the inquiry or the investigation, as the case may be, by the magistrate mandatory. That amended provisions incorporated in Sec. 202(1) of the Cr.P.C. adding the words, “ and shall in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction ” were made effective with effect from 23.6.2006. The legislative intention is to prevent innocent persons from harassment by unscrupulous persons from false complaints. That hence considering the use of expression, “shall” and the background and the purpose for which the amendment has been given, it is clear that inquiry or the investigation, as the case may be, is mandatory before summons are issued against the accused, who are residing beyond the territorial jurisdiction of the magistrate. Further it was held in para 14 thereof that the definition of “inquiry” as per Sec.2(g) of the Cr.P.C. that every inquiry, other than a trial, conducted by a magistrate or court is an inquiry and no mode or manner of inquiry is provided under Sec.202 of the Cr.P.C. and that in the inquiry envisaged
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under Sec.202, the witnesses are examined whereas under Sec.200, the examination of the complainant only is necessary with the option of examining the witnesses present, if any. That this exercise by the magistrate for the purpose of deciding whether or not there are sufficient grounds for proceeding against the accused, is nothing but an inquiry envisaged under Sec.202. In para 15 of the said judgment it was held that in the facts of that case, the magistrate who had examined the complainant on solemn affirmation and two witnesses and only thereafter he can direct for issuance of process and thus, on facts it was held that the magistrate has held the inquiry before issuing summons. It will be pertinent to quote paras 12 to 16 of the abovesaid judgment of the Apex Court in Vijay Dhanuka's case supra, which read as follows:
'12. The words “ and shall”, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction ” were inserted by Section 19 of the Code of Criminal Procedure (Amendment) Act (Central Act 25 of 2005) w.e.f. 23-6-2006. The aforesaid amendment, in the opinion of the legislature, was essential as false complaints are filed against persons residing at far off places in order to harass them. The note for the amendment reads 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 use of the expression “shall” prima facie makes the inquiry or the investigation, as the case may be, by the Magistrate mandatory. The word “shall” is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory. The use of the word “shall” in all circumstances is not decisive. Bearing in mind the aforesaid principle, when we look to the intention of the legislature, we find that it is aimed to prevent innocent persons from harassment by unscrupulous persons from false complaints. Hence, in our opinion, the use of the expression “shall” and the background and the purpose for
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which the amendment has been brought, we have no doubt in our mind that inquiry or the investigation, as the case may be, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate.
“40. The Magistrate had issued summons without meeting the mandatory requirement of Section 202 CrPC, though the appellants were outside his territorial jurisdiction. The provisions of Section 202 CrPC were amended vide the Amendment Act, 2005, making it * m andatory to postpone the issue of proces s* where the accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned. The same was found necessary in order to protect innocent persons from being harassed by unscrupulous persons and making it obligatory upon the Magistrate to enquire into the case himself, or to direct investigation to be made by a police officer, or by such other person as he thinks fit for the purpose of finding out whether or not, there was sufficient ground for proceeding against the accused before issuing summons in such cases.”
(emphasis supplied)
“2. (g) ‘inquiry’ means every inquiry, other than a trial, conducted under this Code by a Magistrate or court;”
It is evident from the aforesaid provision, every inquiry other than a trial conducted by the Magistrate or the court is an inquiry. No specific mode or manner of inquiry is provided under Section 202 of the Code. In the inquiry envisaged under Section 202 of the Code, the witnesses are examined whereas under Section 200 of the Code, examination of the complainant only is necessary with the option of examining the witnesses present, if any. This exercise by the Magistrate, for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused, is nothing but an inquiry envisaged under Section 202 of the Code.
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error in the order impugned [Vijay Dhanuka , In re, Criminal Revision No.508 of 2013 Order dated 19.2.2013 (Cal)]. In the result, we do not find any merit in the appeals and the same are dismissed accordingly.'
and 406 of the I.P.C.,the Apex Court in judgment in Udai Shankar Awasthi v. State of U.P. & Anr. reported in (2013) 2 SCC 435, has held in para 40 thereof as follows:
“40. The Magistrate had issued summons without meeting the mandatory requirement of Section 202 CrPC, though the appellants were outside his territorial jurisdiction. The provisions of Section 202 CrPC were amended vide the Amendment Act, 2005, making it mandatory to postpone the issue of process where the accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned. The same was found necessary in order to protect innocent persons from being harassed by unscrupulous persons and making it obligatory upon the Magistrate to enquire into the case himself, or to direct investigation to be made by a police officer, or by such other person as he thinks fit for the purpose of finding out whether or not, there was sufficient ground for proceeding against the accused before issuing summons in such cases. (See also Shivjee Singh v. Nagendra Tiwary [(2010) 7 SCC 578] p. 584, para 11 and National Bank of Oman v. Barakara Abdul Aziz [(2013) 2 SCC 488].
Crl.M.C.534/17 - : 24 :-
under the Press & Registration Act, 1867 and making the said declared editor responsible for those acts in view of the provisions of Sec.2(1) of the Press & Registration Act, etc. The Apex Court therein by placing reliance on abovecited Vijay Dhanuka's case supra in paras 24 to 29 of
the judgment of the case in Abhijit Pawar's case supra held as follows:
“24. The requirement of conducting enquiry or directing investigation before issuing process is, therefore, not an empty formality. What kind of 'enquiry' is needed under this provision has also been explained in Vijay Dhanuka case, which is reproduced hereunder:
"14. In view of our answer to the aforesaid question, the next question which falls for our determination is whether the learned Magistrate before issuing summons has held the inquiry as mandated under S.202 of the Code. The word "inquiry" has been defined under S.2(g) of the Code, the same reads as follows:
"2. (g) 'inquiry' means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court;"
It is evident from the aforesaid provision, every inquiry other than a trial conducted by the Magistrate or the Court is an inquiry. No specific mode or manner of inquiry is provided under S.202 of the Code. In the inquiry envisaged under S.202 of the Code, the witnesses are examined whereas under S.200 of the Code, examination of the complainant only is necessary with the option of examining the witnesses present, if any. This exercise by the Magistrate, for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused, is nothing but an inquiry envisaged under S.202 of the Code."
"On considering facts on record, it appears that complainant has made out prima facie case against the accused for, the offences punishable under S.500, S.501, S.50 read with 34 of the Indian Penal Code. Hence issue process against the accused for the above offences returnable on 23/12/2009. case be registered as Summary Case."
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to consider the applicability of the amended provisions of Sec.202 of the Cr.P.C. in cases as in H.D.F.C. v. Jaleel, reported in 2008 (3) KLT 869 and Usha Sanghi v. George Jacob, reported in 2008(4) KLT 649.
Crl.M.C.534/17 - : 26 :-
such a classification as persons residing the outside the territorial jurisdiction of court, may be put to greater hardship, inconvenience and harassment by an unjustified cognizance taken against them and that the object of the amendment is to ensure that the unjustified cognizance should not be taken against the individuals that they should not be forced and compelled to face such unjustified prosecution and that a magistrate taking cognizance against such class of persons residing outside the jurisdiction must be more careful and circumspect before cognizance is taken against them and process is issued and that the anxiety of the legislature is thus clearly reflected in these provisions and what remained optional is sought to be made compulsory in respect of a class of persons by the introduction of the amendment of Sec. 202 of the Cr.P.C. effective from 23.6.2006. However, in para 17 of the decision in H.D.F.C's case supra, this Court held that where the magistrate himself conducts the inquiry, there is virtually no difference between the inquiry under Sec. 200 and inquiry under Sec. 202. That in considering the issue as to when the inquiry under Sec.200 Cr.P.C. would end, and the inquiry under Sec.202 would stand start, one cannot locate any such Rubicon between the inquiry under Sec.200 Cr.P.C. and inquiry under Sec. 202 Cr.P.C. That under Sec.202 Cr.P.C., the magistrate himself may conduct the inquiry and he or she may direct the Police or any other person to conduct investigation and where he himself conducts inquiry, there is
Crl.M.C.534/17 - : 27 :-
virtually no difference between the inquiry under Sec.200 and and inquiry under Sec. 202. The learned Magistrate at the stage of S.202 Cr. P.C will only record the sworn statements of witnesses cited, but not present at the stage of S.200 Cr.P.C. and in a proceedings under S.138 of the N.I Act, there can ordinarily be no scope for investigation by a police officer or any other person. That in a given case it is quite possible that the complainant may cite number of witnesses in addition to himself and produce all of them before the Magistrate in the enquiry under S.200 Cr. P.C. and if the complainant and all those witnesses are examined at the stage of S.200 Cr.P.C and there is no need perceived for any investigation by a police officer, nothing more would remain to be enquired into at the stage of S.202 Cr.P.C. and it would be idle, puerile, unnecessary and a sheer waste of time, in such a case to proceed to any enquiry under S.202 Cr. P.C. That the requisite satisfaction under Sec.203/204 Cr.P.C, must be entertained or not, in such a case at the end of the inquiry under Sec.200 itself as nothing survives and it is unnecessary for the court in such a case to proceed to the inquiry under Sec.202 Cr. P.C. The inquiry under S.202 Cr.P.C in a case where no investigation is necessary, is not qualitatively different from the inquiry under S.200 Cr.P.C. Further, it was held in para 31 thereof that ordinarily in a prosecution under Sec.138 of the N.I Act, if a proper complaint is filed supported by necessary documents and a proper affidavit of the complainant is filed under
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Sec.145(1) it may not be necessary for the Magistrate to proceed to hold inquiry under Sec.202 Cr.P.C as the requisite satisfaction can be entertained at the end of the inquiry under S.200 Cr. P.C itself. That though Sec.202 as amended applies to prosecution under Sec. 138 of the N.I. Act also in the light of Sec.4(2) of the Cr.P.C., and in the absence of any specific contra provisions in Sec.138 of the N.I. Act. But that ordinarily in a prosecution under Sec.138 of the N.I Act, if a proper complaint is filed supported by necessary documents and a proper affidavit, it may not be necessary for the Magistrate to proceed to hold the inquiry under Sec.202 Cr.P.C as the requisite satisfaction can be entertained at the end of the inquiry under Sec.200 Cr. P.C itself. But that in a case where there is possibility of dispute regarding territorial jurisdiction, or dispute regarding complicity alleged with the help of Sec.141 of the N.I Act, it will be proper, necessary and advisable for the Magistrate to hold enquiry under Sec.202 Cr.P.C. That even in such inquiry under S.202 Cr.P.C in a prosecution under Sec.138 of the N.I Act, it is not invariably necessary to examine a complainant and his witnesses personally on oath and the complainant could be directed to file affidavit or additional affidavit under Sec.145 of the N.l. Act on the specific aspects where materials are found necessary or the Court entertains doubts. That Sec.145 of the N.I Act shall apply to the stage of inquiry under S.202 Cr.P.C also and courts must be specifically cognisant of the
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need for expedition in a prosecution under Sec.138 of the N.I. Act. It will be profitable to refer to paras 17 and 31 of the abovesaid judgment of
this Court in H.D.F.C's case supra, which read as follows:
"17. It may be apposite in this context to consider when the enquiry under S.200 Cr. P.C would end and the enquiry under S.202 Cr. P.C would start. I am unable to locate any such Rubicon between the enquiry under S.200 Cr. P.C and the enquiry under S.202 Cr. P.C. Under S.202 Cr. P.C the Magistrate himself may conduct the enquiry. He may direct a police officer or any other person to conduct an investigation. Where he himself conducts the enquiry there is virtually no difference between the enquiry under S.200 and the enquiry under S.202 Cr. P.C. The learned Magistrate at the stage of S.202 Cr. P.C will only record the sworn statements of witnesses cited but not present at the stage of S.200 Cr. P.C. In a proceedings under S.138 of the N.I Act, there can ordinarily be no scope for investigation by a police officer or any other person. In a given case it is quite possible that the complainant may cite 'n' number of witnesses in addition to himself and produce all of them before the Magistrate in the enquiry under S.200 Cr. P.C. If the complainant and all those witnesses are examined at the stage of S.200 Cr. P.C and there is no need perceived for any investigation by a police officer, nothing more would remain to be enquired into at the stage of S.202 Cr. P.C. It would be idle, puerile, unnecessary and a sheer waste of time in such a case to proceed to any enquiry under S.202 Cr. P.C. The requisite satisfaction under S.203/204 Cr. P.C must be entertained or not, in such a case at the end of the enquiry under S.200 itself as nothing survives and it is unnecessary for the court in such a case to proceed to the enquiry under S.202 Cr. P.C. I take assistance from this example to decide whether notwithstanding the fact that mandatory language is used by the amendment, it is imperative that the court must proceed to such an enquiry under S.202 Cr. P.C in all cases. The enquiry under S.202 Cr. P.C in a case where no investigation is necessary, is not qualitatively different from the enquiry under S.200 Cr. P.C."
xxx xxx xxx
Crl.M.C.534/17 - : 30 :-
Crl.M.C.534/17 - : 31 :-
S.138 of the N.I Act, it is not invariably necessary to examine a complainant and his witnesses personally on oath. They can be directed to file affidavit or additional affidavit u/S.145 of the N.l. Act on the specific aspects where materials are found necessary or the Court entertains doubts. S.145 of the N.I Act as explained in the decision in Vasudevan v. State of Kerala (2005 (1) KLT 220) shall apply to the stage of enquiry under S.202 Cr. P.C also. Courts must be specifically cognisant of the need for expedition in a prosecution under S.138 of the N.I. Act.
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thereof that after amendment to Sec.202 Cr.P.C., insofar as the accused was residing outside the jurisdiction of the magistrate concerned, not only the averments in the complaint but also materials collected at the inquiry under Sec.200 and Sec.202 must be available to persuade the magistrate to take the view that there are sufficient grounds to issue process against the accused under Sec.204 of the Cr.P.C. That the purpose of amendment to Sec.202 Cr.P.C. is to rule out the possibility of undeserved vexation for persons residing outside the jurisdiction of the magistrate inflicted on them by a complainant by unjustified resort to criminal adjudicatory process, etc. It was also held in para 3 thereof that in a complaint which alleges vicarious liability under Sec.141 specific assertions must be made to attract the play of Sec.141 of the Negotiable Instruments Act and it has been averred in the complaint that the accused persons concerned are in charge and responsible for the affairs of the business of the company and that once the allegation is specifically raised, it is for the complainant to adduce evidence in support of the said assertion later and it has to be effectively conveyed as a matter of fact that the accused persons were in charge of and responsible to the company for the conduct of its affairs on the date of the offence and if such averments are made, it can be attempted to be supported later at the stage of inquiry under Sec. 200/202 of the Cr.P.C. or at the later stage of the trial.
Crl.M.C.534/17 - : 33 :-
“3. To the vital facts first. The complainant alleged that the 1st accused, a company, had issued the cheques involved in these cases to him for the due discharge of a legally enforcible debt/liability. There is no contention that either of the petitioners had signed the cheques in question. It is alleged that they were directors of the company. There are averments which suggest that they have roles to play in the management and affairs of the company. All the complaints were filed along with affidavits under S.145 Cr. P.C. in lieu of sworn statement under S.200 Cr.P.C. No enquiry under S.202 Cr.P.C was conducted by the Magistrates in all these cases. Cognizance was taken and process was issued against all the 6 accused persons including the petitioners herein who are accused 3 and 4 in all the prosecutions.
xxx xxx xxx
Crl.M.C.534/17 - : 34 :-
On that aspect, in respect of the accused persons who are residing at Hyderabad, the pointed attention of the court must have been riveted imbibing the motivations and persuasions that prompted the legislature to bring in the amendment to S.202 Cr.P.C. That has not been done by the learned Magistrate and that inadequacy, according to me, justifies the challenge raised by the petitioners."
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Crl.M.C.534/17 - : 36 :-
Magistrate to have conducted Sec.202 inquiry.
Sec.142(2):
"The offence under S.138 shall be inquired into and tried only by a Court within whose local jurisdiction:--
(a) If the cheque is delivered for collection through an account, the branch of the Bank where the payee or holder in due course, as the case may be, maintains the account, is situated: or
Crl.M.C.534/17 - : 37 :-
Explanation.-- For the purposes of Clause (a), where a cheque is delivered for collection at any branch of the Bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the Bank in which the payee or holder in due course, as the case may be, maintains the account.
Sub section (1) of Sec. 142A:
Sec.142A.-- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or any judgment, decree, order or directions of any Court, all cases arising out of S.138 which were pending in any Court, whether filed before it, or transferred to it, before the commencement of the Negotiable Instruments (Amendment) Ordinance, 2015 shall be transferred to the Court having jurisdiction under sub-section (2) of S.142 as if that sub-section had been in force at all material times.
xxx xxx xxx”
Crl.M.C.534/17 - : 38 :-
the payee or the holder in due course to whom he sends the cheque for collection would be determinative of the place of territorial jurisdiction. It is only in exceptional cases where the payee or holder in due course presents the cheque for payment, otherwise through an account, that the branch of the drawee bank, where the drawer accused maintains the account, is situated becomes the determinative place of territorial jurisdiction, as contemplated in clause (b) of sub section (2) of Sec. 142. So in actual practice in vast majority of cases, in complaints alleging offence under Sec.138 of the Negotiable Instruments Act, the accused persons may be residing outside the territorial jurisdictional limits of the magistrate having jurisdiction over the collection bank. If in all such cases, if it is held that the decision of the learned Magistrate to take cognizance even after due conduct of Sec. 200 preliminary inquiry, would be rendered illegal, merely because he has not conducted Sec. 202 inquiry, it would be taking a mechanistic and tunnel visioned view, which would result in stultifying the very object of expeditious commencement and completion of such cases and merely because Sec. 202 inquiry is not conducted, will not necessarily vitiate the decision of the learned Magistrate in having taken cognizance on the basis of Sec. 200 inquiry. As held by this Court in H.D.F.C's case supra and Usha Sanghi's case supra, in actual practice, there may not be much difference between Sec. 200 inquiry and Sec.202 inquiry. This crucial aspect of the matter has
Crl.M.C.534/17 - : 39 :-
also been substantially and effectively acknowledged by the Supreme Court in para 14 of the aforecited Vijay Dhanuka & Ors. v. Najima Mamtaj & Ors. reported in (2014) 14 SCC 638, which in turn has been relied and reiterated by the Apex Court in para 24 of the decision in Abhijit Pawar v. Hemant Madhukar Nimbalkar & Anr. reported in 2017 KHC 6029 = 2017 (1) KLD 159 = 2016 (12) SCALE 788. It has been so held by the Apex Court even in cases which were involving offences under the I.P.C. Therefore, the said view taken by the learned Single Judge of this Court in HDFC's case and Usha Sanghi's case supra, has thus stood approved by the Apex Court in the abovesaid rulings. It will be mainly in cases involving issues of vicarious liability as envisaged in Sec. 141 of the Negotiable Instruments Act in cases where the drawer of dishonoured is a body corporate like a company that appropriateness and relevance of Sec.202 inquiry process would become acute and necessary. Otherwise there cannot be any strait jacket formula to decide as to which are the categories of cases wherein such Sec. 202 inquiry process would be appropriate and relevant. But in vast majority of Sec. 138 matters, one may not be able to locate any Rubicon between Sec. 200 inquiry and Sec. 202 inquiry. The core and crux of the matter is as to whether the learned Magistrate had necessary and proper materials in order to enable him to decide whether further steps in the complaint could be proceeded with, for the issuance of process of the summons to the accused. That is the
Crl.M.C.534/17 - : 40 :-
heart of the matter which is to be examined and therefore hyper technical and mechanistic contentions based on the mere non conduct of Sec. 202 inquiry, are not really apt and relevant and as held by this Court, mere non conduct of Sec.202 inquiry by itself will not result in vitiating the decision taken by the magistrate on issue of process. When the matter is appropriately challenged before this Court in Sec.482 proceedings in a given case, it is for the Court to examine carefully and meticulously as to whether the non conduct of Sec.202 inquiry has resulted in a situation whereby the magistrate has proceeded to issue the process without having necessary and proper materials for such decision making process. So in the given facts and circumstances of a case, if this Court is satisfied on such crucial and relevant aspects, then certainly the plea could be examined and if found necessary and appropriate to advance in the interest of justice, then certainly appropriate directions could be issued by virtue of the enabling powers under Sec. 482 of the Cr.P.C.
Crl.M.C.534/17 - : 41 :-
vicarious liability envisaged in Sec.141 of the N.I. Act. On the other hand, the only contention raised by the petitioner is that accused No.1 (company) has given standing instructions to their bank that any cheque of the company can be passed only if it is signed by both the authorised signatories, viz., accused 2 and 3. In other words, the petitioner would point out that even as per the case projected in the impugned Anx.A complaint, only A-2 alone has signed in the cheque as an authorised signatory and that therefore the cheque was not valid and hence even if there was sufficient account in the balance of the company's account, the cheque could not have been passed by the bank as the cheque has been executed only by A-2 who is one of the signatories and as it has not been issued and signed by the petitioner (A-3) who is the other authorised signatory. It may not be relevant or proper to consider such a contention by the learned Magistrate even if a Sec. 202 inquiry was held in this case, as it does not pertain to a dispute regarding the vicarious liability of coaccused directors of the company in terms of Sec. 141 of the N.I. Act. Therefore, it is absolutely not necessary for this Court at this stage to consider whether such a legal contention raised by the petitioner is tenable and sustainable so as to affect the prosecution under Sec. 138 of the N.I. Act. If the petitioner is of the considered view that such a contention as now raised by him is tenable and sound, it is for him to raise such an objection or defence at the appropriate stage during the
Crl.M.C.534/17 - : 42 :-
adjudication of the case in the trial of this case. This Court would refrain from commenting about the tenability and soundness of such a contention in these proceedings except to say that it may not have been relevant and proper for the learned Magistrate to have examined such an issue even if a Sec.202 inquiry is conducted in this case. Therefore, the abovesaid contentions raised by the petitioner based on the nonconduct of Sec. 200 inquiry in this case, is not an aspect which would vitiate the decision making process in the matter of taking cognizance in this case. The petitioner has not raised any contention in this petition that the learned Magistrate has not even conducted Sec. 200 preliminary inquiry before taking the impugned decision to take cognizance of the offence in this case. Therefore, this Court would proceed only on the premise as if the learned Magistrate has taken cognizance in this case, after conducting a preliminary inquiry at the Sec. 200 stage. It is for the petitioner to lead necessary factual evidence in regard to the foundation of his various objections and it is for the trial court to consider all aspects of the matter including the said contention raised by the petitioner regarding the validity of the cheque during the adjudication of the matter in the trial of this case.
With these observations and directions, the aforecaptioned Crl.M.C. Stands dismissed.
sdk+
Sd/ALEXANDER THOMAS, JUDGE
///True Copy///
P.S. to Judge
Crl.M.C.534/17 - : 43 :-
2 issues framed by the court
Does omission of a Section 202 Cr.P.C. inquiry before summoning an accused residing outside jurisdiction necessarily vitiate a cheque-dishonour prosecution?
Did the alleged omission of a Section 202 inquiry justify quashing this prosecution against the company director?
Colour shows how this judgement treated each authority
Modern Denim Limited & Ors. v. State of Gujurat & Anr.Referred¶88
2016 KHC 3342 = 2016 CrLJ NOC 184
Indian Bank Association & Ors. v Union of IndiaReferred¶99
(2014) 5 SCC 590 · Who else cites this
Biswanath Maheswari v. M/s. Navbharat Tea Processing Pvt. Ltd.Referred¶112
2011 CrLJ 2373
Piyush Bharat Saini v. Paras GuptaReferred¶116
2014 KHC 2939
ASR Systems Pvt. Ltd. v. Kimberly Clark Hygiene Products Pvt. Ltd. & Anr.Referred¶121
2011 KHC 6505 = 2011 CrLJ 3558
National Bank of Oman. v. Barakara Abdul Aziz & Anr.Referred¶128
(2013) 2 SCC 488 · Who else cites this
K.S.Joseph v. Philips Carbon Black Ltd.Explained¶138
(2016) 11 SCC 105 = 2016 (2) KLT 542 (SC) · Who else cites this
Vijay Dhanuka & Ors. v. Najima Mamtaj & Ors.Relied on¶251
(2014) 14 SCC 638 · Who else cites this
Udai Shankar Awasthi v. State of U.P. & Anr.Referred¶172
(2013) 2 SCC 435 · Who else cites this
Abhijit Pawar v. Hemant Madhukar Nimbalkar & Anr.Relied on¶251
2017 KHC 6029 = 2017 (1) KLD 159 = 2016 (12) SCALE 788
H.D.F.C. v. JaleelFollowed¶231
2008 (3) KLT 869
Usha Sanghi v. George JacobFollowed¶231
2008(4) KLT 649
Dashrath Rupsingh Rathod v. State of Maharashtra & Anr.Explained¶237
(2014) 9 SCC 129 · Who else cites this
Bridge Stone India (P) Ltd. v. Inderpal SinghRelied on¶247
(2016) 2 SCC 75 · Who else cites this
9 provisions across 2 enactments
E.K. JALEEL
THE STATE OF KERALA
E.O. MIRSHAD
ALEXANDER THOMAS
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
