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CR.MA/5536/2007 21/ 21 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 5536 of 2007
=========================================================
KETAN
ANANT RAJPOPAT - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
CHETAN K PANDYA for
Applicant(s) : 1,
MR M.R. MENGDEY ADDL.PUBLIC PROSECUTOR for
Respondent NO.1,
MR SHAKEEL A QURESHI for Respondent
No.2,
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 03/09/2007
ORAL
ORDER
By
way of this application under sec.482 of the Code of Criminal
Procedure the applicant ? original accused has prayed for an
appropriate order quashing and setting aside Criminal Case No.2242
of 2007 pending before the learned Judicial Magistrate (FC), Rajkot.
The respondent No.2 herein ? original complainant has filed the
impugned complaint being Criminal Case No.2242 of 2007 in the court
of learned Chief Judicial Magistrate, Rajkot against the original
accused on 15/3/2007 for the offences under sec.138 of the
Negotiable Instruments Act (?SN.I. Act?? for short) alleging
inter-alia that the applicant has issued a cheque dtd.31/8/2006
bearing No.0504609
of Rs.2,75,000=00 and when the same was deposited in the Bank on
23/1/2007, the same has been returned by the bank with an
endorsement ?Saccount closed??. That the learned Judicial
Magistrate (FC), Rajkot passed an order for verification of the
complainant and thereafter the complainant was examined as required
under sec.200 of the Code of Criminal Procedure and after
considering the complaint, verification, documentary evidences
produced along with the complaint and the evidence, the learned 7th
Additional Senior Civil Judge and Judicial Magistrate (First Class),
Rajkot by order dtd.19/3/2007 ordered for issuance of the Summons
against the applicant for the offence under sec.138 of N.I. Act by
further observing that by considering above, there is a prima face
case made out against the applicant for the offence under sec.138 of
N.I. Act. Having served with the Summons, the applicant ? original
applicant has preferred the present application under sec.482 of the
Code of Criminal Procedure to quash and set aside the impugned
complaint.
The
learned advocate appearing on behalf of the applicant has submitted
that issuance of the Summons against the applicant by the learned
Magistrate in the impugned complaint is without following the
mandatory requirement of sec.202 of the Code of Criminal Procedure.
It is submitted that admittedly in the present case the complaint
was filed on 15/3/2007 and the complainant was called under sec.200
of the Code of Criminal Procedure to record his verification
statement on 19/3/2007 and on 19/3/2007, after recording his
statement and obtaining his signature, straightway process has been
under sec.204 of the Code of Criminal Procedure.
The
learned advocate appearing on behalf of the applicant has submitted
that there can be no static definition of the term ?Sinquiry?? as
under the Code of Criminal Procedure, the term ?Sinquiry?? is
found in different sections to mean different things and therefore,
scope and ambit of the term ?Sinquiry depends upon the context in
which it is used in that particular section.
It
is submitted that looking at the scheme and the chapter relating to
complaints to magistrates (Chapter XV) and the conditions requisite
for initiation of proceedings (Chapter XIV), more specifically
section 190 of the Code of Criminal Procedure, sec.190 of the Code
of Criminal Procedure would show that a Magistrate may take
cognizance of an offence upon receiving a complaint of facts which
constitute an offence. When a Magistrate applies his mind for the
purposes of proceeding u/s.200 of the Code of Criminal Procedure, he
is said to have taken cognizance within the meaning of sec.190 of
the Code of Criminal Procedure. Section 200 of the Code of Criminal
Procedure provides that the Magistrate taking cognizance of an
offence shall examine upon oath the complainant and the witnesses,
if any, who are present and after recording their evidence, in
writing, have the same signed by them. It is submitted that sec.204
of the Code of Criminal Procedure provides that if the Magistrate
thinks that there is sufficient ground for proceeding in a case, he
shall issue a summons. Sec.204(2) of the Code of Criminal Procedure
provides that no summons shall be issued unless list of prosecution
witnesses has been filed. Therefore, a Magistrate need not have
resorted to the procedure prescribed under sec.202 of the Code of
Criminal Procedure (unamended) and he could have straightaway on the
basis of a statement made by the complainant and his witnesses
issued a summons. Simultaneously, the Magistrate could have also, in
exercise of his powers, dismissed the complaint if he was of the
opinion that there is no sufficient ground for proceeding any
further. Thus, at the stage of Sec.200 of the Code of Criminal
Procedure, the Magistrate is obliged to record statement of the
complainant and any of his witnesses present. It is only after
applying his mind to these statements can a Magistrate issue process
as it is the settled law that a Magistrate cannot mechanically issue
a summons. The learned advocate appearing on behalf of the applicant
has relied upon the decisions of the Hon’ble Supreme Court in the
case of Peosi Foods Land and another Vs. Special Judicial
Magistrate and others, reported in (1998) 5 SCC 749 (para 28) and
in the case of S. Sagar Suri and another Vs. Stsate of U.P. And
others, reported in (2000) 2 SCC 636 (para 7 and 8).
It
is further submitted that if, however, a Magistrate is not satisfied
with the material, which has come on record viz. The statement of
the complainant and any of his witnesses present, then he can resort
to the procedure u/s.202 of the Code of Criminal Procedure. It is
submitted that if a Magistrate is resorting to the procedure
u/s.202 of the Code of Criminal Procedure then, obviously there has
to be something more than a mere recording of the complainant’s
statement. The Magistrate has postponed the issuance of the process
as he is not satisfied with what is already on record for a further
inquiry. It is submitted that even prior to the amendment in sec.202
of the Code of Criminal Procedure in the year 2005, the Hon’ble
Supreme Court has held that when a magistrate is resorting to a
procedure u/s.202 of the Code of Criminal Procedure, there has to be
some additional material before him, except what was already there,
when he had ordered an investigation under sec.202 of the Code of
Criminal Procedure. It is further submitted that in the case of
Mohammad Ataullah Vs. Ram Saran Mahto, reported in (1981) 2 SCC 266,
the Hon’ble Supreme Court has held that when a magistrate was
resorting to a procedure u/s.202 of the Code of Criminal Procedure,
there had to be some additional material before him, except what was
already there, when he had ordered an investigation under sec.202 of
the Code of Criminal Procedure.
It
is submitted that now with the amendment in sec.202 of the Code of
Criminal Procedure, the words ?S and shall, in cases where the
accused is residing at a place beyond the area in which he exercises
his jurisdiction?? have been added. Thus, the law now assumes, in
every case, where the accused is residing beyond the jurisdiction of
the Magistrate, he shall postpone the issuance of process and either
inquire into the case himself or direct an investigation. It is
submitted that the law, therefore, assumes that the Magistrate shall
not be satisfied in such cases only with the statement of the
complainant u/s.200 of the Code of Criminal Procedure. The use of
the words ?Sshall?? in cases of persons residing beyond the area
of jurisdiction of the Magistrate, in contradiction to the use of
the word ?Smay?? in other in other cases shows that the
postponement of process to hold an inquiry is mandatory.
It
is further submitted that the words used in sec.202 of the Code of
Criminal Procedure are ?Sin inquiry?? or ?San investigation??.
This investigation can either be by a police officer or by a third
person. It is submitted that the scope of the meaning of the word
?Sinvestigation?? has been elaborately dealt with in case of H.N.
Rishbud and another Vs. State of Delhi, reported in AIR 1955 SC 196
(para 5). It is submitted that the term ?Sinquiry?? has not been
specifically defined and therefore, the object and purpose of the
inquiry in the context of sec.202 of the Code of Criminal Procedure
has to be culled out from the decided case law. It is submitted
that the purpose of an inquiry u/s.202 of the Code of Criminal
Procedure is to see as to whether there is a prima facie case as
distinguished from a probability of conviction. The purpose of an
inquiry is to determine whether there is a sufficient evidence for
proceeding or not. The discretion is of the Magistrate to issue or
not to issue a process, however, if deems the evidence insufficient
he should postpone the issuance of process. The accused has no
right to be heard, similarly he cannot be compelled to appear.
However, it does not prevent the Magistrate from issuing notice to
the accused to explain his case. There has to be some additional
material over and above what was elicited in the proceedings
u/s.200 of the Code of Criminal Procedure. It is submitted that
there is no particular procedure prescribed for conducting an
inquiry, however, when process is postponed u/s.202 of the Code of
Criminal Procedure,the Magistrate must have some additional material
over and above the statement of the complainant as recorded u/s.200
of the Code of Criminal Procedure before issuing process u/s.204 of
the of the Code of Criminal Procedure.
The
learned advocate appearing on behalf of the applicant has drawn
attention of the Court to the notes of Clauses prior to sec.202 of
the Code of Criminal Procedure as reproduced in the Code of
Criminal Procedure, 1973 by universal law publication is as under:-
?SCR.P.C.
(Amendment) Act, 2005 (notes on clauses):-
Sub-section(1)
has been amended to make it obligatory upon the magistrate that
before summoning the accused residing beyond his jurisdiction, he
shall inquire into the case himself or direct investigation to be
made by a police officer or such other person as he thinks fit, for
finding out whether or not there was sufficient ground for proceeding
against the accused. This has been done to see that innocent persons
are not harassed by unscrupulous persons.??
It
is also further submitted that while construing an amendment, the
Courts can look into the mischief which was sought to be remedied
applying what is popularly known as the Heydons Rule or the Mischief
Rule. Applying the aforesaid principles, it is submitted that the
amendment has been brought in to ensure that persons residing
outside the jurisdiction of the Magistrate were not forced to face
trial without the Magistrate being fully satisfied that a prima
facie case for summoning the accused has been made out.
It
is submitted that in the instant case, had such a procedure of
holding an inquiry has been followed, it would have become clear to
the learned Magistrate that the accused had replied to the notice
u/s.138 of the N.I. Act by his letter dtd.6/3/2007, wherein it was
inter-alia pointed out that the complainant had never met the
applicant and instead a blank cheque had been issued to one
Mr.Ashish Vagadia who had acknowledged on a stamp paper that this
blank cheque was only being issued as a security for certain advance
being agreed to be arranged as a loan. No loan, in fact, had been
arranged and this blank cheque had somehow reached the complainant
who had misused the same and the said reply dtd.6/3/2007 was not
produced on record by the complainant before the learned Magistrate.
An investigation would have revealed these facts and it is possible
that the learned Magistrate might have even dismissed the complaint
u/s.203 of the Code of Criminal Procedure.
Therefore,
it is submitted that as no inquiry has been held by the learned
Magistrate as required under sec.202 of the Code of Criminal
Procedure as amended in the year 2005 and straightaway relying upon
the verification of the complainant summons / process has been
issued by the learned Magistrate, the same is without complying with
the mandatory procedure as provided under sec.202 of the Code of
Criminal Procedure. Submitting accordingly, it is requested to allow
the present petition and quash and set aside the impugned complaint.
Present
application is opposed by Mr.M.R. Mengdey, learned Additional Public
Prosecutor for State and Mr.Shakeel Qureshi, learned advocate
appearing on behalf of the respondent No.2 ? original complainant.
The
learned advocates appearing on behalf of the respondents while
opposing the present application have vehemently submitted that
while issuing summons upon the applicant for the offence under
sec.138 of the N.I. Act, the learned Magistrate has specifically
observed that he has considered the complaint, verification,
documents produced along with the complaint and considering the
same, he is satisfied that a prima facie case is made out against
the applicant for the offence u/s.138 of the N.I. Act. Therefore, it
is not that the learned Magistrate has straightaway issued the
summons simply relying upon the verification. He has submitted that
considering the above and the inquiry made by the learned
Magistrate, when the learned Magistrate was satisfied that the prima
facie case is made out, summons has been issued and therefore, it
cannot be said that the procedure as contemplated under sec.202 of
the Code of Criminal Procedure has not been complied with by the
learned Magistrate. It is submitted by the learned advocates
appearing on behalf of the respondents that inquiry contemplated
under sec.202 of the Code of Criminal Procedure should be considered
and restricted to inquiry to find out whether or not there is
sufficient ground for proceeding against the accused or not and
nothing more than that. At that stage the learned Magistrate is not
required to to consider whether on the basis of the evidence on
record, the accused would be convicted or not. It is submitted
that the statement and object for the amendment in sec.202 of the
Code of Criminal Procedure is required to be considered. It is
submitted that considering the statement and object of amendment in
sec.202 of the Code of Criminal Procedure, as it was found that
false complaints were being filed against the accused persons
residing at the far off places simply to harass them and therefore,
in order to see that innocent persons are not harassed by the
unscrupulous persons, sec.202 of the Code of Criminal Procedure has
been amended and the inquiry is contemplated for finding out as to
whether or not there is sufficient ground for proceeding against the
accused. It is submitted that at that stage full-fledged inquiry is
not contemplated or not required as suggested and submitted by the
learned advocate appearing on behalf of the applicant. It is
submitted that the decisions cited on behalf of the applicant are
the decisions prior to amendment in the year 2005. Therefore, it is
submitted that when the learned Magistrate was satisfied that the
prima faice case is made out which requires further trial, it is
requested not to interfere with the same and therefore, it is
requested to dismiss the present application.
Heard
the learned advocates appearing on behalf of the respective parties.
The
impugned complaint has been filed by the respondent No.2 against the
applicant in the court of learned Chief Judicial Magistrate, Rajkot
for the offence under sec.138 of N.I. Act alleging inter-alia that
the applicant has issued a cheque of Rs.2,75,000 and when the said
cheque has been deposited in the bank, the same has been returned
with an endorsement ?Saccount closed??. It is further submitted
that thereafter statutory notice has been served upon the applicant
and within stipulated time, the amount has not been paid as required
under sec.138 of the N.I. Act, and therefore, the complaint has
been filed on 15/3/2007. That thereafter, the learned Judicial
Magistrate (FC) by order dtd.19/3/2007 has issued summons upon the
applicant for the offence under sec.138 of N.I. Act. The said order
dtd.19/3/2007 reads as under:-
?SRead
the complainant’s complaint and his verification and on taking into
consideration the documents, evidence produced by the complainant,
as prima facie offence is made out against the accused for the
offence under sec.138 of the Negotiable Instruments Act, complaints
be taken on register and on payment of process fee, summons for the
date 27/4/2007 be issued against the accused.??
Thus,
considering the aforesaid order, it appears that before issuance of
the summons upon the applicant and registering the complaint, the
learned Magistrate has considered the complaint, verification,
documents produced along with the complaint and considering the same,
the learned Magistrate was satisfied that a prima facie case is made
out against the applicant for the offence u/s.138 of the N.I. Act.
Thus, it cannot be said that there was no inquiry by the learned
Magistrate before issuing summons upon the applicant. Now, what type
of inquiry is required to be held by the learned Magistrate as
contemplated under sec. 202 of the Code of Criminal Procedure before
issuance of the summons, is the question which is required to be
considered by this Court.
It
is the contention on behalf of the applicant that full-fledged
inquiry is required to be conducted by the learned Magistrate before
issuance of the summons / process upon the applicant in respect to
the accused who is residing outside the jurisdiction of the learned
Magistrate. According to the learned advocate appearing on behalf of
the applicant relying upon various decisions in respect to the
inquiry which are of prior to the amendment in sec.202 of the Code
of Criminal Procedure, inquiry under sec.202 of the Code of Criminal
Procedure is to see as to whether there is prima facie case as
distinguished from a probability of conviction and the said inquiry
must be more than verification of the complainant. As per the
applicant, now, as per the amended sec.202 of the Code of Criminal
Procedure, the learned Magistrate is bound to postpone the issuance
of the process as contemplated under sec.200 of the Code of Criminal
Procedure and therefore, something more than verification is
required. The submission seems to be more attractive but looking to
the statement and object for amendment in sec.202 of the Code of
Criminal Procedure, it appears that as it was found that false
complaints were being filed against the persons residing at far off
places simply to harass then and in order to see that the innocent
persons are not harassed by unscrupulous persons, there is amendment
in sec.202 of the Code of Criminal Procedure and now it is made
obligatory upon the learned 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 or by
such other person as he thinks fit, for finding out whether or not
there is sufficient ground for proceeding against the accused.
Therefore, considering the statement and object of amendment in
sec.202 of the Code of Criminal Procedure, it appears that the at
the stage of sec.202 of the Code of Criminal Procedure, the learned
Magistrate is required to hold an inquiry for finding out whether or
not there is sufficient ground for proceeding against the accused
and whether the complaint which is filed is frivolous or not, so
that innocent person who is residing outside his jurisdiction is not
harassed. Therefore, considering the statement and object of the
amendment in sec.202 of the Code of Criminal Procedure, the scope
of inquiry is to be restricted only to that extent and nothing more
than that i.e. whether there is a prima facie case made out for
conviction and/or there is a sufficient evidence on the basis of
which the accused are likely to be convicted or not. At that stage
what is required to be considered by the learned Magistrate is
whether prima facie case is made out against the accused for
proceeding further with the trial or not. At that stage, the
decision of the Hon’ble Supreme Court in the case of State of Orissa
Vs. Saroj Kumar Sahoo, reported in (2005) 13 SCC 540 is required to
be referred to. As held by the Hon’ble Supreme Court in the said
decision, even at the stage when the charge is framed, the court has
to only prima facie be satisfied about the existence of sufficient
ground for proceeding against the accused and for that limited
purpose, it can evaluate materials and documents on record but it
cannot appreciate the evidence.
Now,
looking to the order passed by the learned Magistrate issuing
summons upon the applicant for the offence u/s.138 of the N.I. Act
as stated above, it appears that the learned Magistrate himself has
held inquiry after considering the complaint, verification and the
documents produced along with the complaint and he is satisfied that
a prima facie case is made out against the applicant for the offence
u/s.138 of the N.I.Act, meaning thereby he is satisfied that the
complaint which has been filed against the applicant is not
vexatious and frivolous and therefore, it cannot be said that the
learned Magistrate has not held any inquiry whatsoever. It is also
required to be noted at this stage that though the learned
advocate appearing on behalf of the applicant has submitted that the
learned Magistrate while postponing the issuance of the process and
before issuance of the process, is required to hold inquiry which
would be something more than the verification, however, he is not in
a position to point out as to what type of inquiry should be
conducted / held by Magistrate. As stated above, at the time of
inquiry under sec.202 of the Code of Criminal Procedure and looking
to the statement and object of the amendment in sec.202 of the Code
of Criminal Procedure this Court is of the opinion that inquiry
which is contemplated under sec.202 of the Code of Criminal
Procedure is to be restricted to make out a prima facie case against
the accused and with a view to satisfy the Magistrate whether or not
there is sufficient ground for proceeding against the accused and
the complaint against the accused who is residing outside his
jurisdiction is not vexatious or frivolous to harass the accused
persons. Under the circumstances, it cannot be said that the
issuance of the process against the applicant for the offence
u/s.138 of the N.I. Act by the learned Magistrate or order
dtd.19/3/2007 issuing process against the applicant, is in any way
illegal and/or contrary to sec.202 of the Code of Criminal
Procedure.
Now,
so far as the contention on behalf of the applicant that the cheque
in question was given by the accused by way of security is
concerned, it is required to be noted that the same is defence which
is required to be considered at the time of trial leading proper
evidence and on that ground, the complaint is not required to be
quashed and set aside in exercise of the powers under sec.482 of the
Code of Criminal Procedure.
It
is also required to be noted at this stage that in the present
application the applicant has prayed for quashing and setting aside
the complaint, but there is no prayer made by the applicant to
quash and set aside order dtd.19/3/2007 passed by the learned
Magistrate issuing process against the applicant for the offence
u/s.138 of the N.I. Act. Though it is the case on behalf of the
applicant that issuance of the process / summons against the
applicant is without following and/or complying the mandatory
provisions as required under sec.202 of the Code of Criminal
Procedure, there must be a prayer on the basis of the pleadings and
therefore, assuming that there might be some irregularity in issuing
the summons then also on that ground the entire complaint is not
required to be quashed and set aside.
Under
the circumstances and for the reasons stated above and considering
the order dtd.19/3/2007 passed by the learned Magistrate issuing
process upon the applicant for the offence under sec.138 of the N.I.
Act, no case is made out to quash the impugned complaint. Under the
circumstances, there is no substance in the application. The
application deserves dismissal and is accordingly dismissed. Notice
is discharged.
(M.R.
SHAH, J.)
rafik
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