{"id":20573,"date":"2011-02-08T00:00:00","date_gmt":"2011-02-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ketan-vs-state-on-8-february-2011"},"modified":"2018-09-29T22:35:39","modified_gmt":"2018-09-29T17:05:39","slug":"ketan-vs-state-on-8-february-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ketan-vs-state-on-8-february-2011","title":{"rendered":"Ketan vs State on 8 February, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Ketan vs State on 8 February, 2011<\/div>\n
Author: M.R. Shah,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.MA\/5536\/2007\t 21\/ 21\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nMISC.APPLICATION No. 5536 of 2007\n \n\n \n\n\n \n\n=========================================================\n\n \n\nKETAN\nANANT RAJPOPAT - Applicant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT & 1 - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nCHETAN K PANDYA for\nApplicant(s) : 1, \nMR M.R. MENGDEY ADDL.PUBLIC PROSECUTOR for\nRespondent NO.1, \nMR SHAKEEL A QURESHI for Respondent\nNo.2, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE M.R. SHAH\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 03\/09\/2007 \n\n \n\n \nORAL\nORDER<\/pre>\n
By
\n\tway of this application under sec.482 of the Code of Criminal
\n\tProcedure the applicant ?  original accused has prayed for an
\n\tappropriate order quashing  and setting aside Criminal Case No.2242
\n\tof 2007 pending before the learned Judicial Magistrate (FC), Rajkot.
\n\tThe respondent No.2 herein ?  original complainant has filed the
\n\timpugned complaint being Criminal Case No.2242 of 2007 in the court
\n\tof learned Chief Judicial Magistrate, Rajkot against the original
\n\taccused on 15\/3\/2007 for the offences under sec.138 of the
\n\tNegotiable Instruments Act (?SN.I. Act?? for short) alleging
\n\tinter-alia that the applicant has issued a cheque dtd.31\/8\/2006
\n\tbearing No.0504609
\n\tof Rs.2,75,000=00 and when the same was deposited in the Bank on
\n\t23\/1\/2007, the same has been returned by the bank with an
\n\tendorsement ?Saccount closed??. That the learned Judicial
\n\tMagistrate (FC), Rajkot passed an order for verification of the
\n\tcomplainant and thereafter the complainant was examined as required
\n\tunder sec.200 of the Code of Criminal Procedure  and after
\n\tconsidering the complaint, verification, documentary evidences
\n\tproduced along with the complaint and the evidence, the learned 7th
\n\tAdditional Senior Civil Judge and Judicial Magistrate (First Class),
\n\tRajkot by order dtd.19\/3\/2007 ordered for  issuance of the Summons
\n\tagainst the applicant  for the offence under sec.138 of N.I. Act by
\n\tfurther observing that by considering above, there is a prima face
\n\tcase made out against the applicant for the offence under sec.138 of
\n\tN.I. Act. Having served with the Summons, the applicant ?  original
\n\tapplicant has preferred the present application under sec.482 of the
\n\tCode of Criminal Procedure to quash and set aside the impugned
\n\tcomplaint.\n<\/p>\n
The
\n\tlearned advocate appearing on behalf of the applicant has submitted
\n\tthat issuance of the Summons against the applicant by the learned
\n\tMagistrate in the impugned complaint is without following the
\n\tmandatory requirement of sec.202 of the Code of Criminal Procedure.
\n\tIt is submitted that admittedly in the present case the complaint
\n\twas filed on 15\/3\/2007 and the complainant was called under sec.200
\n\tof the Code of Criminal Procedure to record his verification
\n\tstatement on 19\/3\/2007 and on 19\/3\/2007, after recording his
\n\tstatement and obtaining his signature, straightway process has been
\n\tunder sec.204 of the Code of Criminal Procedure.\n<\/p>\n
The
\n\tlearned advocate appearing on behalf of the applicant has submitted
\n\tthat there can be no static definition of the term ?Sinquiry?? as
\n\tunder the Code of Criminal Procedure, the term ?Sinquiry?? is
\n\tfound in different sections to mean different things and therefore,
\n\tscope and ambit of the term ?Sinquiry depends upon the context in
\n\twhich it is used in that particular section.\n<\/p>\n
It
\n\tis submitted that looking at the scheme and the chapter relating to
\n\tcomplaints to magistrates (Chapter XV) and the conditions requisite
\n\tfor initiation of proceedings (Chapter XIV), more specifically
\n\tsection 190 of the Code of Criminal Procedure, sec.190 of the Code
\n\tof Criminal Procedure would show that a Magistrate may take
\n\tcognizance of an offence upon receiving a complaint of facts which
\n\tconstitute an offence. When a Magistrate applies his mind for the
\n\tpurposes of proceeding u\/s.200 of the Code of Criminal Procedure, he
\n\tis said to have taken cognizance within the meaning of sec.190 of
\n\tthe Code of Criminal Procedure. Section 200 of the Code of Criminal
\n\tProcedure provides that the Magistrate taking cognizance of an
\n\toffence shall examine upon oath the complainant and the witnesses,
\n\tif any, who are present and after recording their evidence, in
\n\twriting, have the same signed by them.  It is submitted that sec.204
\n\tof the Code of Criminal Procedure provides that  if the Magistrate
\n\tthinks that there is sufficient ground for proceeding in a case,  he
\n\tshall issue a summons. Sec.204(2) of the Code of Criminal Procedure
\n\tprovides that no summons shall be issued unless list of prosecution
\n\twitnesses has been filed. Therefore, a Magistrate need not have
\n\tresorted to the procedure prescribed under sec.202 of the Code of
\n\tCriminal Procedure (unamended) and he could have straightaway on the
\n\tbasis of a statement made by the complainant and his witnesses
\n\tissued a summons. Simultaneously, the Magistrate could have also, in
\n\texercise of his powers, dismissed the complaint if he was of the
\n\topinion that there is no sufficient ground for proceeding any
\n\tfurther.  Thus, at the stage of Sec.200 of the Code of Criminal
\n\tProcedure, the Magistrate is obliged to  record statement  of the
\n\tcomplainant and any of his witnesses present.  It is only after
\n\tapplying his mind to these statements can a Magistrate issue process
\n\tas it is the settled law that a Magistrate cannot mechanically issue
\n\ta summons. The learned advocate appearing on behalf of the applicant
\n\thas relied upon the decisions of the Hon’ble Supreme Court in the
\n\tcase of Peosi Foods Land and another Vs.  Special Judicial
\n\tMagistrate and others, reported in (1998) 5  SCC 749 (para 28) and
\n\tin the case of S. Sagar Suri and another Vs. Stsate of U.P. And
\n\tothers, reported in (2000) 2 SCC 636 (para 7 and 8).\n<\/p>\n
It
\n\tis further submitted that if, however, a Magistrate is not satisfied
\n\twith the material, which has come on record viz. The statement of
\n\tthe complainant and any of his witnesses present, then he can resort
\n\tto the procedure u\/s.202 of the Code of Criminal Procedure. It is
\n\tsubmitted that if a Magistrate is resorting to  the procedure
\n\tu\/s.202 of the Code of Criminal Procedure then, obviously there has
\n\tto be something more than a mere recording of the complainant’s
\n\tstatement. The Magistrate has postponed the issuance of the process
\n\tas he is not satisfied with what is already on record for a further
\n\tinquiry. It is submitted that even prior to the amendment in sec.202
\n\tof the Code of Criminal Procedure in the year 2005, the Hon’ble
\n\tSupreme Court has held that when a magistrate is resorting to a
\n\tprocedure u\/s.202 of the Code of Criminal Procedure, there has to be
\n\tsome additional material before him, except what was already there,
\n\twhen he had ordered an investigation under sec.202 of the Code of
\n\tCriminal Procedure. It is further submitted  that in the case of
\n\tMohammad Ataullah Vs. Ram Saran Mahto, reported in (1981) 2 SCC 266,
\n\tthe Hon’ble Supreme Court has held that when a magistrate was
\n\tresorting to a procedure u\/s.202 of the Code of Criminal Procedure,
\n\tthere had to be some additional material before him, except what was
\n\talready there, when he had ordered an investigation under sec.202 of
\n\tthe Code of Criminal Procedure.\n<\/p>\n
It
\n\tis submitted that now with the amendment in  sec.202 of the Code of
\n\tCriminal Procedure, the words ?S and shall, in cases where the
\n\taccused is residing at a place beyond the area in which he exercises
\n\this jurisdiction?? have been added. Thus, the law now assumes, in
\n\tevery case, where the accused is residing beyond the jurisdiction of
\n\tthe Magistrate, he shall postpone the issuance of process and either
\n\tinquire into the case himself or direct  an investigation. It is
\n\tsubmitted that the law, therefore, assumes that the Magistrate shall
\n\tnot be satisfied in such cases only with the statement of the
\n\tcomplainant u\/s.200 of the Code of Criminal Procedure. The use of
\n\tthe words ?Sshall??  in cases of persons residing beyond the area
\n\tof jurisdiction of the Magistrate, in contradiction to the use of
\n\tthe word ?Smay?? in other  in other cases shows that the
\n\tpostponement of process to hold an inquiry is mandatory.\n<\/p>\n
It
\n\tis further submitted that  the words used in sec.202 of the Code of
\n\tCriminal Procedure are ?Sin inquiry?? or ?San investigation??.
\n\tThis investigation can either be by a police officer or by a third
\n\tperson. It is submitted that the scope of the meaning of the word
\n\t?Sinvestigation?? has been elaborately dealt with in case of H.N.
\n\tRishbud and another Vs. State of Delhi, reported in AIR 1955 SC  196
\n\t(para 5). It is submitted that the term ?Sinquiry?? has not been
\n\tspecifically defined and therefore, the object and purpose of the
\n\tinquiry  in the context of sec.202 of the Code of Criminal Procedure
\n\thas to be culled out from the decided case law.  It is submitted
\n\tthat the purpose of an inquiry u\/s.202  of the Code of Criminal
\n\tProcedure is to see as to whether there is a prima facie case as
\n\tdistinguished from a probability of conviction. The purpose of an
\n\tinquiry is to  determine whether there is a sufficient evidence for
\n\tproceeding or not. The discretion is of the Magistrate  to issue  or
\n\tnot to issue a process, however, if deems the evidence insufficient
\n\the should postpone the issuance of process.  The accused has no
\n\tright to be heard, similarly he cannot be compelled to appear.
\n\tHowever, it does not prevent the Magistrate from issuing notice to
\n\tthe accused to explain his case.  There has to be some additional
\n\tmaterial over and above what was elicited  in the proceedings
\n\tu\/s.200 of the  Code of Criminal Procedure. It is submitted that
\n\tthere is no particular procedure prescribed for conducting an
\n\tinquiry, however, when process is postponed u\/s.202 of the Code of
\n\tCriminal Procedure,the Magistrate must have some additional material
\n\tover and above the statement of the complainant as recorded u\/s.200
\n\tof the Code of Criminal Procedure before issuing process u\/s.204 of
\n\tthe  of the Code of Criminal Procedure.\n<\/p>\n
The
\n\tlearned advocate appearing on behalf of the applicant has drawn
\n\tattention of the Court to the notes of Clauses prior to sec.202 of
\n\tthe  Code of Criminal Procedure as reproduced in the  Code of
\n\tCriminal Procedure, 1973 by universal law publication is as under:-\n<\/p>\n
\t?SCR.P.C.\n<\/p>\n
(Amendment) Act, 2005 (notes on clauses):-\n<\/p>\n
Sub-section(1)
\nhas been amended to make it obligatory upon the magistrate that
\nbefore summoning the accused residing beyond his jurisdiction, he
\nshall inquire into the case himself or direct investigation to be
\nmade by a police officer or such other person as he thinks fit, for
\nfinding out whether or not there was sufficient ground for proceeding
\nagainst the accused. This has been done to see that innocent persons
\nare not harassed by unscrupulous persons.??\n<\/p>\n
It
\n\tis also further submitted that  while construing an amendment, the
\n\tCourts can look into the mischief which was sought to be remedied
\n\tapplying what is popularly known as the Heydons Rule or the Mischief
\n\tRule. Applying the aforesaid principles, it is submitted that the
\n\tamendment has been brought in to ensure that persons residing
\n\toutside the jurisdiction of the Magistrate were not forced to face
\n\ttrial without the Magistrate being fully satisfied  that a prima
\n\tfacie case for summoning the accused  has been made out.\n<\/p>\n
It
\n\tis submitted that in the instant case, had such a procedure of
\n\tholding an inquiry has been followed, it would have become clear to
\n\tthe learned Magistrate that the accused had replied to the notice
\n\tu\/s.138 of the N.I. Act by his letter dtd.6\/3\/2007, wherein it was
\n\tinter-alia pointed out that the complainant had never met the
\n\tapplicant and instead a blank cheque had been issued to one
\n\tMr.Ashish Vagadia who had acknowledged on a stamp paper that this
\n\tblank cheque was only being issued as a security for certain advance
\n\tbeing agreed to be arranged as a loan. No loan, in fact, had been
\n\tarranged and this blank cheque had somehow reached the complainant
\n\twho had misused the same and the said reply dtd.6\/3\/2007 was not
\n\tproduced on record by the complainant before the learned Magistrate.
\n\tAn investigation would have revealed these facts and it is possible
\n\tthat the learned Magistrate might have even dismissed the complaint
\n\tu\/s.203 of the Code of Criminal Procedure.\n<\/p>\n
Therefore,
\n\tit is submitted that  as no inquiry has been held by the learned
\n\tMagistrate as required under sec.202 of the Code of Criminal
\n\tProcedure as amended in the year 2005 and straightaway relying upon
\n\tthe verification of the complainant summons \/ process has been
\n\tissued by the learned Magistrate, the same is without complying with
\n\tthe mandatory procedure as provided under sec.202 of the Code of
\n\tCriminal Procedure. Submitting accordingly, it is requested to allow
\n\tthe present petition and quash and set aside the impugned complaint.\n<\/p>\n
Present
\n\tapplication is opposed by Mr.M.R. Mengdey, learned Additional Public
\n\tProsecutor for State and Mr.Shakeel  Qureshi, learned advocate
\n\tappearing on behalf of the respondent No.2 ?  original complainant.\n<\/p>\n
The
\n\tlearned advocates appearing on behalf of the respondents while
\n\topposing the present application have vehemently submitted that
\n\twhile issuing summons upon the applicant for the offence under
\n\tsec.138 of the N.I. Act, the learned Magistrate has  specifically
\n\tobserved that he has considered the complaint, verification,
\n\tdocuments produced along with the complaint and considering the
\n\tsame, he is satisfied that a prima facie case is made out against
\n\tthe applicant for the offence u\/s.138 of the N.I. Act. Therefore, it
\n\tis not that the learned Magistrate has straightaway issued the
\n\tsummons simply relying upon the verification.  He has submitted that
\n\tconsidering the above and the inquiry made by the learned
\n\tMagistrate, when the learned Magistrate was satisfied that the prima
\n\tfacie case is made out, summons has  been issued and therefore, it
\n\tcannot be said that the procedure as contemplated under sec.202 of
\n\tthe Code of Criminal Procedure has not been complied with by the
\n\tlearned Magistrate.  It is submitted by the learned advocates
\n\tappearing on behalf of the respondents that  inquiry contemplated
\n\tunder sec.202 of the Code of Criminal Procedure should be considered
\n\tand restricted to inquiry to find out whether or not there is
\n\tsufficient ground for proceeding against the accused or not and
\n\tnothing more than that. At that stage the learned Magistrate is not
\n\trequired to  to consider whether on the basis of the evidence on
\n\trecord, the accused would be convicted or not.  It is submitted
\n\tthat the statement and object for the amendment in sec.202 of the
\n\tCode of Criminal Procedure  is required to be considered. It is
\n\tsubmitted that considering the statement and object of amendment in
\n\tsec.202 of the Code of Criminal Procedure, as it was found that
\n\tfalse complaints were being filed  against the accused persons
\n\tresiding at the far off places simply to harass them and therefore,
\n\tin order to see that innocent persons are not harassed by the
\n\tunscrupulous persons, sec.202 of the Code of Criminal Procedure  has
\n\tbeen amended and the inquiry is contemplated for finding out  as to
\n\twhether or not there is sufficient ground for proceeding against the
\n\taccused. It is submitted that at that stage full-fledged inquiry is
\n\tnot contemplated or not required as suggested and submitted by the
\n\tlearned advocate appearing on behalf of the applicant. It is
\n\tsubmitted that  the decisions cited on behalf of the applicant are
\n\tthe decisions prior to amendment in the year 2005. Therefore, it is
\n\tsubmitted that  when the learned Magistrate  was satisfied that the
\n\tprima faice case is made out which requires further trial, it is
\n\trequested not to interfere with the same and therefore, it is
\n\trequested to dismiss the present application.\n<\/p>\n
Heard
\n\tthe learned advocates appearing on behalf of the respective parties.\n<\/p>\n
The
\n\timpugned complaint has been filed by the respondent No.2 against the
\n\tapplicant in the court of learned  Chief Judicial Magistrate, Rajkot
\n\tfor the offence under sec.138 of N.I. Act alleging inter-alia that
\n\tthe applicant has issued a cheque of Rs.2,75,000 and when the said
\n\tcheque has been deposited in the bank, the same has been returned
\n\twith an endorsement ?Saccount closed??. It is further submitted
\n\tthat thereafter statutory notice has been served upon the applicant
\n\tand within stipulated time, the amount has not been paid as required
\n\tunder sec.138 of the N.I. Act,  and therefore, the complaint has
\n\tbeen filed on 15\/3\/2007. That thereafter, the learned Judicial
\n\tMagistrate (FC) by order dtd.19\/3\/2007 has issued summons upon the
\n\tapplicant for the offence under sec.138 of N.I. Act. The said order
\n\tdtd.19\/3\/2007 reads as under:-\n<\/p>\n
?SRead
\n\tthe complainant’s complaint and his verification and on taking into
\n\tconsideration the documents, evidence produced by the complainant,
\n\tas prima facie offence is made out against the accused for the
\n\toffence under sec.138 of the Negotiable Instruments Act, complaints
\n\tbe taken on register and on payment of process fee, summons for the
\n\tdate 27\/4\/2007 be issued against the accused.??\n<\/p>\n
\tThus,
\n considering the aforesaid order, it appears that before issuance of
\nthe summons upon the applicant and registering the complaint, the
\nlearned Magistrate has considered the complaint, verification,
\ndocuments produced along with the complaint and considering the same,
\nthe learned Magistrate was satisfied that a prima facie case is  made
\nout against the applicant for the offence  u\/s.138 of the N.I. Act.
\nThus, it cannot be said that there was no inquiry  by the learned
\nMagistrate  before issuing summons upon the applicant. Now, what type
\nof inquiry is required to be held by the learned Magistrate as
\ncontemplated under sec. 202 of the Code of Criminal Procedure  before
\nissuance of the summons, is the question which is required to be
\nconsidered by this Court.\n<\/p>\n
It
\n\tis the contention on behalf of the applicant that full-fledged
\n\tinquiry is required to be conducted by the learned Magistrate before
\n\tissuance of the summons \/ process upon the applicant in respect to
\n\tthe accused who is residing outside the jurisdiction of the learned
\n\tMagistrate. According to the learned advocate appearing on behalf of
\n\tthe applicant relying upon various decisions in respect to the
\n\tinquiry which are of prior to the amendment in sec.202 of the Code
\n\tof Criminal Procedure, inquiry under sec.202 of the Code of Criminal
\n\tProcedure  is to see as to whether there is prima facie case as
\n\tdistinguished from a probability of conviction and the said inquiry
\n\tmust be more than verification of the complainant. As per the
\n\tapplicant, now, as per the amended sec.202 of the Code of Criminal
\n\tProcedure, the learned Magistrate is bound to postpone the issuance
\n\tof the process as contemplated under sec.200 of the Code of Criminal
\n\tProcedure  and therefore, something more  than verification is
\n\trequired. The submission seems to be more attractive but looking to
\n\tthe statement and object for amendment in sec.202 of the Code of
\n\tCriminal Procedure, it appears that as it was found that false
\n\tcomplaints were being filed against the  persons residing at far off
\n\tplaces simply to harass then and in order to see that the innocent
\n\tpersons are not harassed by unscrupulous persons, there is amendment
\n\tin sec.202 of the Code of Criminal Procedure  and now  it is made
\n\tobligatory upon the learned Magistrate that before summoning the
\n\taccused residing beyond his jurisdiction, he shall enquire into the
\n\tcase himself or direct investigation to be made by a police or by
\n\tsuch other person as he thinks fit, for finding out whether or not
\n\tthere is sufficient ground for proceeding against the accused.
\n\tTherefore, considering the statement and object  of amendment in
\n\tsec.202 of the Code of Criminal Procedure, it appears that the at
\n\tthe stage of sec.202 of the Code of Criminal Procedure, the learned
\n\tMagistrate is required to hold an inquiry for finding out whether or
\n\tnot there is sufficient ground for proceeding against the accused
\n\tand whether the complaint which is filed is frivolous or not, so
\n\tthat innocent person who is residing outside his jurisdiction is not
\n\tharassed. Therefore, considering the statement and object of the
\n\tamendment in sec.202 of the Code of Criminal Procedure, the scope
\n\tof inquiry is to be restricted only to that extent and nothing more
\n\tthan that i.e. whether there is a prima facie case made out for
\n\tconviction and\/or there is a sufficient evidence on the basis of
\n\twhich the accused are likely to be convicted or not. At that stage
\n\twhat is required to be considered by the learned Magistrate is
\n\twhether prima facie case is made out against the accused for
\n\tproceeding further with the trial or not. At that stage, the
\n\tdecision of the Hon’ble Supreme Court in the case of State of Orissa
\n\tVs. Saroj Kumar Sahoo, reported in (2005) 13 SCC 540 is required to
\n\tbe  referred to. As held by the Hon’ble Supreme Court in the said
\n\tdecision, even at the stage when the charge is framed, the court has
\n\tto only prima facie be satisfied  about the existence  of sufficient
\n\tground for proceeding against the accused and for that  limited
\n\tpurpose, it can evaluate materials and documents on record but it
\n\tcannot appreciate the evidence.\n<\/p>\n
Now,
\n\tlooking to the order passed by the learned Magistrate issuing
\n\tsummons upon the applicant for the offence u\/s.138 of the N.I. Act
\n\tas stated above, it appears that the learned Magistrate  himself has
\n\theld inquiry after considering the complaint, verification and the
\n\tdocuments produced along with the complaint and he is satisfied that
\n\ta prima facie case is made out against the applicant for the offence
\n\tu\/s.138 of the N.I.Act, meaning thereby he is satisfied that the
\n\tcomplaint which has been filed against the applicant is not
\n\tvexatious and frivolous and therefore, it cannot be said that the
\n\tlearned Magistrate has not held any inquiry whatsoever. It is also
\n\trequired to be noted at this stage that   though the learned
\n\tadvocate appearing on behalf of the applicant has submitted that the
\n\tlearned Magistrate while postponing the issuance of the process and
\n\tbefore issuance of the process, is required to hold inquiry which
\n\twould be something more than the verification, however, he is not in
\n\ta position to point out as to what type of inquiry should be
\n\tconducted \/ held by Magistrate. As stated above, at the time of
\n\tinquiry under sec.202 of the Code of Criminal Procedure and looking
\n\tto the statement and object of the amendment in sec.202 of the Code
\n\tof Criminal Procedure this Court is of the opinion that inquiry
\n\twhich is contemplated under sec.202 of the Code of Criminal
\n\tProcedure is to be restricted to make out a prima facie case against
\n\tthe accused and with a view to satisfy the Magistrate whether or not
\n\tthere is sufficient ground for proceeding against the accused and
\n\tthe complaint against the accused who is residing outside his
\n\tjurisdiction is not vexatious  or frivolous to harass the accused
\n\tpersons.  Under the circumstances, it cannot be said that the
\n\tissuance of the process against the applicant for the offence
\n\tu\/s.138 of the N.I. Act by the learned Magistrate or order
\n\tdtd.19\/3\/2007 issuing process against the applicant,  is in any way
\n\tillegal and\/or contrary to sec.202 of the Code of Criminal
\n\tProcedure.\n<\/p>\n
Now,
\n\tso far as the contention on behalf of the applicant that the cheque
\n\tin question was given  by the accused by way of security  is
\n\tconcerned, it is required to be noted that the same is defence which
\n\tis required to be considered at the time of trial leading proper
\n\tevidence and on that ground, the complaint is not required to be
\n\tquashed and set aside in exercise of the powers under sec.482 of the
\n\tCode of Criminal Procedure.\n<\/p>\n
It
\n\tis also required to be noted at this stage that in the present
\n\tapplication the applicant has prayed for quashing and setting aside
\n\tthe complaint, but there is no prayer made by the applicant  to
\n\tquash and set aside order dtd.19\/3\/2007  passed by the learned
\n\tMagistrate issuing process against the applicant for the offence
\n\tu\/s.138 of the N.I. Act. Though it is the case on behalf of the
\n\tapplicant that issuance of the process \/ summons against the
\n\tapplicant is without following  and\/or complying the mandatory
\n\tprovisions as required under sec.202 of the Code of Criminal
\n\tProcedure, there must be a prayer on the basis of the pleadings and
\n\ttherefore, assuming that there might be some irregularity in issuing
\n\tthe summons then also on that ground the entire complaint  is not
\n\trequired to be quashed and set aside.\n<\/p>\n
Under
\n\tthe circumstances and for the reasons stated above and considering
\n\tthe order dtd.19\/3\/2007 passed by the learned Magistrate issuing
\n\tprocess upon the applicant for the offence under sec.138 of the N.I.
\n\tAct, no case is made out to quash the impugned complaint. Under the
\n\tcircumstances, there is no substance in the application. The
\n\tapplication deserves dismissal and is accordingly dismissed. Notice
\n\tis discharged.\n<\/p>\n
\t\t\t\t\t\t\t(M.R.\n<\/p>\n
SHAH, J.)<\/p>\n
rafik<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Ketan vs State on 8 February, 2011 Author: M.R. Shah,&Nbsp; Gujarat High Court Case Information System Print 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 : […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-20573","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nKetan vs State on 8 February, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ketan-vs-state-on-8-february-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ketan vs State on 8 February, 2011 - 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