1.0 As common question of law and facts arise in both these applications, they are disposed of by this common judgment and oder.
2.0 Special Criminal Application No.229 of the 2009 has been preferred by the petitioner herein original accused to quash and set aside the impugned complaint being Criminal Case No. 1645 of 2008 pending in the Court of learned JMFC, Karjan for the offences under Section 138 of the Negotiable Instruments Act filed by respondent no.2 hereinoriginal complainant. It is also further prayed to quash and set aside the order dated 16.12.2008 passed by the learned JMFC, Karjan passed in Criminal Complaint being Criminal Case No.1645 of 2008 directing to issue summons/ process against the applicant for the offences under Section 138 of the Negotiable Instruments Act.
3.0 Special Criminal Application No.230 of the 2009 has been preferred by the petitioner herein original accused to quash and set aside the impugned complaint being Criminal Case No. 1653 of 2008 pending in the Court of learned JMFC, Karjan for the offences under Section 138 of the Negotiable Instruments Act filed by respondent no.2 hereinoriginal complainant. It is also further prayed to quash and set aside the order dated 16.12.2008 passed by the learned JMFC, Karjan passed in Criminal Complaint being Criminal Case No.1653 of 2008 directing to issue summons/ process against the applicant for the offences under Section 138 of the Negotiable Instruments Act.
4.0 Ms. Contractor, learned advocate has appeared on behalf of the applicant and Shri Sudhanshu Patel, learned advocate has appeared on behalf of respondent no.1original complainant.
5.0 Ms. Contractor, learned advocate for the applicant original accused has vehemently submitted that as such before issuing the summons/ process against the applicant for the offences under Section 138 of the Negotiable Instruments Act, there is total non compliance of the provision of Section 202 of the Code of Criminal Procedure. It is submitted that as per Section 202 of the Code of Criminal Procedure any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under Section 190, may if he thinks fit, 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 office or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. It is submitted that in the present case, no such inquiry has been held by the learned Magistrate. It is submitted that even from the impugned order dated 16.12.2008 passed by the learned JMFC directing to issue summons against the applicant for the offences under Section 138 of the Negotiable Instruments Act it does not appear that the learned Magistrate was even prima facie satisfied that there is case of issuance of summons. Therefore, it is requested to quash and set aside the impugned order directing to issue summons upon the applicant for the offences under Section 138 of the Negotiable Instruments Act.
5.1. Ms. Contractor, learned advocate for the applicant has heavily relied upon the decision of this Court rendered in Special Criminal Application No.3066 of 2007 in support of her above submission.
6.0 Shri Sudhanshu Patel, learned advocate for the respondent original complainant is not in a position to satisfy the Court that before issuing the summons against the applicant for the offences under Section 138 of the Negotiable Instruments Act, the learned Judge has considered the averment and allegation in the complaint and was even prima facie satisfied even for issuing of summons. Therefore, he has requested to pass appropriate order and remand the matter to the learned Magistrate to consider the complaint in accordance with law and on merits and pass an appropriate order afresh after considering Section 202 of the Code of Criminal Procedure. He does not invite any further reasoned order on merits as any observation by this Court may affect the case of either parties in proceedings before the learned Magistrate.
7.0 Shri Dabhi, learned APP has requested to pass appropriate order considering the facts and circumstances of the case.
8.0 Heard the learned advocates for the respective parties at length and considered the impugned order passed by the learned Magistrate directing to issue summons against the applicant original accused for the offences under Section 138 of the Negotiable Instruments Act. It is not in dispute that the applicant original accused is residing outside the territorial jurisdiction of the learned Magistrate taking cognizance of the complaint. As provided under Section 202 of the Code of Criminal Procedure any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under Section 190, may if he thinks fit, postpone the issue of process against the accused and must postpone in case accused is residing at the place beyond the area in which the Magistrate exercise his jurisidiction and either inquire into the case himself or direct an investigation to be made by a police office or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Under the circumstances, in case where the accused is residing at the place beyond the area in which the learned Magistrate exercise his jurisdiction, the learned Magistrate has to postpone the issue of process against the accused and to hold the inquiry by himself or direct an investigation to be made by a police office or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. From the impugned order, it does not appear that learned Magistrate had formed an opinion that there is sufficient ground for proceedings and therefore, he is issuing the process. From the impugned order, it appears that even nothing has been mentioned by the learned Magistrate that he has gone through the averment and allegation in the complaint and / or even on verification is is found by him that there is sufficient ground for proceeding and therefore, he has issued the summons. Under the circumstance, the impugned order passed by the learned Magistrate directing to issue summons against the applicant for the offences under Section 138 of the Negotiable Instruments Act deserves to be quashed and set aside and the matters are to be remanded to the learned trial Court for passing an appropriate order in accordance with law and on merits and considering Section 202 of the Code of Criminal Procedure and thereafter proceeded further with the said Criminal Case being Nos. 1645 of 2008 & 1653 of 2008 pending in the Court of learned JMFC, Karjan in accordance with law.
9.0 In view of the above and for the reasons stated above, both the applications succeed. The impugned order dated 16.12.2008 passed by the learned JMFC, Karjan passed in Criminal Complaint being Criminal Case Nos.1645 of 2008 & 1653 of 2008 are hereby quashed and set aside and the matters are remanded to the learned trial Court to consider the said complaint and pass an appropriate order afresh in accordance with law and on merits and considering Section 202 of the Code of Criminal Procedure, without in any way being influenced by the present order. The aforesaid exercise shall be completed within a period of four weeks from the receipt of the present order. Rule is made absolute to the aforesaid extent in both the applications. Registry is directed to send the writ of this order to the learned trial Court immediately.
kaushik sd/ (M.R.SHAH, J.)