JUDGMENT
Mansoor Ahmad Mir, J.
1. By the medium of this petition, the petitioner has invoked the jurisdiction of this Court in terms of Section 561-A of Cr.P.C. for quashing of the proceedings initiated by City Magistrate (City Judge), Srinagar in the complaint titled as Mohammad Farooq Rangrez v. Waheed Hussain under Section 138 of Negotiable Instrument Act and orders dated 29th December 2004 and 30th December 2004, in order to prevent the abuse of process of law and to secure ends of justice, on the grounds which can be summarily enumerated as under;-
That the trial court has erroneously and illegally followed the procedure.
2. Heard Perused.
The facts and minutes of the case are to be noticed in order to answer the following questions;-
1. Whether the petition is maintainable?
2. whether the interim orders dated 29th December, 2004 and 30th December, 2004 are abuse of process of law or otherwise?
3. It appears that complainant/respondent filed the complaint on 19th October, 2004 against the accused under Section 138 of Negotiable Instruments Act, before the court of Chief Judicial Magistrate, Srinagar who transferred the same to the court of City Magistrate (City Judge), Srinagar. The learned City Magistrate has taken cognizance and issued process against the accused for the commission of offence punishable under Section 138 read with Section 142 of Negotiable Instruments Act.
4. The learned Magistrate recorded the statement of the accused in terms of the mandate of Section 242 Cr.P.C. and directed the complainant to lead evidence in support of the allegations contained in the complaint.
5. It appears that complainant has not examined any witness till 29,12.2004 for the reasons that the accused/petitioner has remained absent on 15th December, 2004.
6. The learned City Magistrate has passed the following orders on 29th and 30th December, 2004; –
29.12.2004 Ld. Counsel for the complainant present. Complainant present. Accused present along with counsel. Heard. Ld. Counsel for the complainant. Ld. Counsel for the accused sought time for arguments. Allowed. Put up on 30.12.2004.
30.12.2004 Complainant present along with counsel. Accused present along with counsel. Heard arguments. Put up for order on 24.01.2005.
7. It is proper to answer the argument of Mr. Khan at the first instance herein. The argument of Mr. Khan, that the Magistrate has not to follow the procedure contained in Chapter XX of Cr. P.O., but has to follow the procedure contained in Section 142 of Negotiable Instrument Act is devoid of any force for the following reasons; –
Section 142 of Negotiable instrument Act read as under;-
142. Cognizance of offences. — Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)–
(a) no Court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing made by the payee or as the case may be, the holder in due course of the cheque;
(b) such complaint is made within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138;
(c) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138.
8. This Section provides three limitations and except these three limitations, all the provisions of Criminal Procedure Code are applicable. The limitations provided are as under;-
1. The payee or the holder in due course may lodge a complaint which should be in writing;
2. It provides the limitation period that a complainant is to be made within one month from the date when cause of action arise under clause ‘C’ of the proviso to Section 138 of Negotiable instrument Act;
3. No court inferior to the Court of Metropolitan Magistrate shall try the offence;
9. Except these three exceptions all the provisions of Criminal Procedure Code are applicable. Sections 142 nowhere mandate that provisions of Criminal Procedure Code are not applicable. No such provision is contained in the Negotiable Instrument Act which prescribes the procedure which is to be followed by the Magistrate.
10. The judgment referred by Mr. Khan reported in 2002 Cr.LJ 2621 is not applicable to the present case. The ratio laid down in the said judgment is that power of attorney holder cannot file a complaint in terms of Section 142 of Negotiable Instrument Act. The offence punishable under Section 138 read with 142 of Negotiable Instruments Act, is a summons case. Thus the procedure contained in Chapter XX, Sections 242 and 243 of Cr.P.C. is to be followed. Section 242 and 243 of Cr.P.C. read as under;–
242. Substance of accusation to be stated.– When the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted; but it shall not be necessary to frame a formal charge.
243. Conviction on admission of truth of accusation.– If the accuse admits that he has committed the offence of which he is accused, his admission shall be recorded as nearly as possible in the words used by him; and if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly.
11. While, going through the said provisions of law, the learned Magistrate has to state the particulars of the offence alleged in the complaint to the accused and has to ask the accused to show cause why accused should not be convicted and if accused admits the commission of offence, the admission shall be recorded in the same words which are being used by the accused, the Magistrate may convict the accused.
12. If the accused does not make any such admission in terms of Section 242 Cr.P.C. or if the Magistrate does not convict the accused in terms of Section 243 or Cr.P.C., the Magistrate has to follow the procedure contained in Section 244 Cr.P.C. which reads as under;–
244. Procedure when no such admission is made,– (1) If the Magistrate does not convict the accused under the preceding section or if the accused does not make such admission, the Magistrate shall proceed to hear the complainant (if any), and take all such evidence as may be produce in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence:
13. The word shall has been used in the Section 244 Cr.P.C., thus it is mandatory that Magistrate has to hear the complainant and take all such evidence as may be produced in support of the prosecution and also to hear the accused and has to take all such evidence which the accused may produce in defence. Now, while testing the case in hand, the question emerges, whether the Magistrate has followed the procedure rightly or wrongfully.
14. The Magistrate has not followed the procedure correctly as discussed above. The Magistrate after recording statement of the accused has directed the complainant to produce evidence and without, recording the statement of the complainant, closing evidence of the complainant, hearing the accused and taking evidence of the accused has straightway posted the case for arguments and then has heard arguments and has posted the case for orders in terms of orders dated 29th December, 2004 and 30th December, 2004, referred hereinabove. Surprisingly the Magistrate has followed a unique procedure which is not warranted by any of the provisions of, Criminal Procedure Code or, Negotiable Instrument Act.
15. Thus the Magistrate has abused the process of law. The petitioner has no other remedy available except to involve the inherent jurisdiction of this Court in terms of Section 561-A of Cr.P.C. This remedy prescribes three circumstances under which inherent jurisdiction can be exercised;–
(1) to give effect to an order under the Code;
(2) to prevent abuse of the process of Court; and
(3) to otherwise to secure the ends of justice.
The interim orders dated 29th and 30th December, of 2004 are abuse of process of law and this Court has to invoke the jurisdiction in order to prevent the abuse of process of law and secure ends of justice and to issue command to the Magistrate to follow the procedure contained in Chapter XX Cr.P.C.
16. Accordingly the petition merits to be allowed and orders dated 29th December, 2004 and 30th December, 2004 merit to be quashed.
17. Viewed, thus the petition is allowed and orders dated 29th of December, 2004 and 30th December, 2004 are hereby quashed and the Magistrate is commanded to proceed ahead in terms of the provisions contained in Chapter XX Cr.P.C. The parties are directed to cause appearance before the court of City Magistrate, Srinagar on 15.05.2005.