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NETCORE Solutions Pvt. Ltd. & Others v/s PINNACLE Teleservices Pvt.Ltd. & Others

    Criminal Writ Petition No.114 of 2012

    Decided On, 03 January 2013

    At, In the High Court of Bombay at Nagpur

    By, THE HONOURABLE MR. JUSTICE M.L. TAHALIYANI

    For the Petitioners: Rohit Joshi, Advocate. For the Respondents: R1 & R2, S.N. Bhattad, Advocate, R3, P.V. Bhoyar, Addl. Public Prosecutor.



Judgment Text

Oral Judgment:

Heard learned counsel for the parties.

2. The main grievance of the petitioners is that the learned trial Magistrate without following the order passed by this Court in Writ Petition No.138 of 2011 had issued process against the petitioners for the offence punishable under Section 138 read with Section 141 of the Negotiable Instruments Act.

3. Respondent Nos.1 and 2 had filed complaint bearing No.16047 of 2010 in the Court of Judicial Magistrate First Class, Nagpur against the petitioners for the offence punishable under Section 138 of the Negotiable Instruments Act. Statement of the complainants/ respondents on oath was recorded for verification of the correctness of the complaint and a process was issued against the applicants to answer the charge for the offence punishable under Section 138 of the Negotiable Instruments Act on 16th December, 2010. The said order was challenged before this Court in Writ Petition No.138 of 2011. This Court (Coram : A.P. Bhangale, J) while finally deciding the said writ petition took a view that the inquiry as contemplated under Section 202(1) of the Code of Criminal Procedure in the cases where the accused are residing at a place beyond the area in which Magistrate exercises his jurisdiction is mandatory in nature and the Magistrate has no discretion in so far as the provisions of Section 202 of the Code of Criminal Procedure are concerned. This Court therefore, quashed and set aside order dated 16th December, 2010 and directed the learned trial Magistrate to hold inquiry under Section 202 of the Code of Criminal Procedure. It was further directed that the respondent Nos.1 and 2 shall appear before the learned trial Magistrate on 5th December, 2011.

4. When the matter was heard afresh by the learned Magistrate and inquiry was held in view of the judgment and order of this Court, the learned Magistrate had recorded statement of the complainant in the said inquiry. After recording of the said statement a fresh process was issued on 16th January, 2012 against all the petitioners to answer the charge for the offence punishable under Section 138 of the Negotiable Instruments Act.

5. It is this order which is under challenge in the present petition. Learned counsel Mr.Joshi appearing on behalf of the petitioner submitted that the learned trial Magistrate instead of holding an inquiry as contemplated under Section 202(1) of the Code of Criminal Procedure had simply recorded statement of the complainant and had proceeded to issue fresh process. It is contended by Mr. Joshi that the learned trial Court failed to comply the order passed by this Hon'ble Court.

6. Learned counsel Mr. Bhattad appearing on behalf of respondent Nos.1 and 2 has submitted that in the cases under Section 138 of the Negotiable Instruments Act there is hardly any scope for detail inquiry and that the Magistrate in compliance with the order of this Court had recorded statement of the complainant and had proceeded to pass fresh order. It is submitted by Mr. Bhattad that the learned trial Court could not have done any further inquiry as the case of respondent Nos.1 and 2 is mainly based on the documents.

7. No doubt, the learned trial Magistrate has a very little scope for detail inquiry in the complaint for the offence punishable under Section 138 of the Negotiable Instruments act. However, the learned trial Magistrate could not have ignored the order of this Court. The learned Magistrate should have gone through the allegations made in the complaint and should have ascertained as to whether there are certain issues which required detail inquiry before deciding as to whether the process could be issued or not.

8. In the present case, the cheque which has allegedly been dishonoured was worth Rs.5,88,000/-. The dishonour of cheque has not been denied by the petitioners. The contention of the petitioners is that the cheque was to be honoured subject to certain conditions. The terms and conditions for honouring the cheque are not necessary to be mentioned in the present order as the same will be the issue before the trial Magistrate. Observations, if any, made by this Court in that regard are likely to influence the trial Magistrate. I am, therefore, refraining myself from going into the details thereof. However, one thing is very clear from the complaint itself that the complainants/respondents allege that the cheque in question worth Rs.5,88,000/- drawn in favour of respondent No.1 was in discharge of part of the liability of the total amount due from the petitioners. This is specifically stated in paragraph 3 of the complaint. In the circumstances, it was the duty of the learned trial Magistrate to ascertain as to how much was the total amount due from the petitioners and under what circumstances the cheque was issued by way of part-payment of the said total due amount. The inquiry into this part of the complaint would have assisted the learned trial Magistrate to ascertain whether there was a prima facie case to hold that the cheque in question was issued in discharge of debt or liability. In my considered opinion, recording of statement of the complainant which is nothing more than the verification statement already recorded cannot be considered to be an inquiry under Section 202(1) of the Code of Criminal Procedure.

9. In this regard, it may be noted here that this Court in the case of Bansilal S. Kabra Vs. Global Trade Finance Ltd., reported at 2010 (2) Bom.C.R. (Cri.) 754 has held that the provisions of Section 202(1) of the Code of Criminal Procedure pertaining to inquiry to be held in the cases where the accused are beyond the jurisdiction of the learned Magistrate are directory in nature and not mandatory. This Court also in the case of Vinod Vs. SBI Global Factors Ltd., reported at 2011 (4) Mh.L.J. 282 has taken the same view and concurred with the earlier judgment of this Court, cited supra. However, in the present case, when the directions had been issued to the learned trial Magistrate by this Court, he was under obligation to follow the same. It was not necessary for this Court to point out as to on what particular points the enquiry was to be held. In any event, in the present judgment I have already indicated to the learned trial Magistrate as to what limited inquiry he is supposed to make in the present facts and circumstances.

10. In view thereof, the order passed by the learned Magistrate on 16th January, 2012 will have to be set aside and the learned Magistrate will have to be directed to hold inquiry for the limited purpose indicated herein above to decide as to whether a process can be issued. Incidentally the learned Magistrate may even consider to hold inquiry as to the individual liability of the Directors vis-a-vis the allegations made in the complaint. Needless to state here that after holding the inquiry as indicated above the learned Magistrate will have to decide as to whether process can be issued and if yes

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, against which of the accused. Hence, I pass the following order. i) The order passed by learned Magistrate on 16th January, 2012 in Summary Criminal Case No.16047 of 2010 issuing process against the petitioners is quashed and set aside. ii) The learned Magistrate is directed to hold a brief inquiry as indicated herein above and to decide as to whether a process can be issued. If the learned Magistrate decides to issue process, he shall simultaneously decide as to whether process could be issued against all the petitioners. iii) The petition stands disposed of accordingly. iv) Stay stands vacated. v) The complainant shall appear before the learned trial Magistrate on 16th January, 2013. Certified copy expedited.
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