Anu Mehta vs Gunmala Sales Private Limited

R.K. Bag, J.—This criminal revision is preferred by the petitioner against the order dated 14.06.2013 passed by the Learned Metropolitan Magistrate, 9th Court, Calcutta in Complaint Case No. 24032 of 2011 u/s 138 of the Negotiable Instruments Act, 1881, by which the Learned Magistrate conducted enquiry u/s 202 of the Code of Criminal Procedure and issued process against the petitioner.

It appears from the materials on record that the Learned Magistrate considered the petition of complaint filed by the opposite party and issued process against the petitioner on 26.09.2011 in the Complaint Case No. 24032 of 2011. It further appears from the materials on record that the petitioner challenged the said order dated 26.09.2011 before this court by filing criminal revision being CRR No. 100 of 2012. The said criminal revision was disposed of by His Lordship Hon''ble Justice Kanwaljit Singh Ahluwalia on 13-03-2013 by setting aside the order of issuing process by the Learned Magistrate and by giving direction to the Learned Magistrate to hold an enquiry within the meaning of Section 202 of the Code of Criminal Procedure within one year from the date of receipt of the order of the High Court. It also appears from the record that the Learned Magistrate conducted the enquiry u/s 202 of the Code of Criminal Procedure and was satisfied that a prima facie case is made out against the present petitioner for an offence u/s 138 of the Negotiable Instruments Act, 1881 and thereby the Learned Magistrate issued the process on 14-06-2013. The said order dated 14.06.2013 passed by the Learned Magistrate has been challenged before this court by the petitioner.

Mr. Dipak Sengupta, learned senior counsel appearing on behalf of the petitioner has assailed the order of the Learned Magistrate on three counts: first, the affidavit filed by Dinesh Mehta, one of the Directors of the company is not the authorized representative of the company and as such the said affidavit on behalf of the complainant/opposite party cannot be taken into consideration by the Learned Magistrate; secondly, the Learned Magistrate has not passed reasoned order showing compliance of the provisions of Section 202 of the Code of Criminal Procedure for the purpose of conducting enquiry as directed by the High Court in CRR No. 100 of 2012, and thirdly, the impugned order passed by the Learned Magistrate reflecting his satisfaction for issuing the process against the petitioner u/s 138 of the Negotiable Instruments Act, 1881 is verbatim representation of the previous order dated 26-09-2011 which was set aside by this High Court in CRR No. 100 of 2012. According to Mr. Sengupta, the examination of the complainant and his witnesses u/s 200 of the Code of Criminal Procedure is not an empty formality and the Learned Magistrate must satisfy himself about the existence of prima facie case against the accused/petitioner against whom the process has been issued. Relying on a decision in the case of "Mira Ghosh V. Mira Ghosh" reported in 2010(1) CHN (Cal) 696 (Para 5), Mr. Sengupta submits that the object of Section 202 of the Code of Criminal Procedure is to enable the Court even after recording of evidence of the complainant and his witnesses to enquire into the matter himself or direct an investigation to be made by a police officer or by such other persons in order to determine whether or not there is sufficient ground for proceeding against any particular accused, where Court finds that the materials already on record does not inspire confidence to issue the process.

Mr. Ayan Bhattacharya, learned counsel for the opposite party has pointed out from the materials on record that the affidavit submitted by one witness, that is, Dinesh Mehta is not the authorized representative of the complainant/opposite parry. The witness Dinesh Mehta happens to be one of the Directors of the opposite party/complainant company and he submitted the affidavit in support of the petition of complaint as required u/s 145 of the Negotiable Instruments Act, 1881. Mr. Bhattacharya has pointed out from the materials on record that the opposite party/complainant company filed the petition of complaint before the court of the Learned Magistrate supported by the affidavit of one Atul Agarwal who happens to be the authorized representative of the opposite party/complainant company. According to Mr. Bhattacharya, the Learned Magistrate has duly considered not only the petition of complaint and the affidavit filed by Atul Agarwal, the authorized representative of the opposite party/complainant company, but also the affidavit of other witness, namely, Dinesh Mehta and documents annexed to the petition of complaint for arriving at the satisfaction that a prima facie case u/s 138 of the Negotiable Instruments Act, 1881 is made out against the present petitioner. Mr. Bhattacharya has urged this court to consider that the impugned order dated 14-06-2013 is not the verbatim representation of the earlier order dated 26-09-2011 as contended on behalf of the petitioner.

Having heard the learned counsels representing the respective parties and on consideration of the materials on record, I find that one Atul Agarwal, the authorized representative of the opposite party/complainant company duly submitted an affidavit before the court of the Learned Magistrate in support of the petition of complaint and Dinesh Mehta, one of the Directors of the opposite party/complainant company also submitted another affidavit as witness before the court of the Learned Magistrate. On perusal of the impugned order, I also find that the Learned Magistrate duly considered not only the contents of the petition of complaint, but also the affidavit submitted by the authorized representative of the opposite party/complainant company and the affidavit submitted by another witness, namely, Dinesh Mehta and the documents annexed to the petition of complaint for arriving at the conclusion that a prima facie case is made out against the present petitioner for commission of offence u/s 138 of the Negotiable Instruments Act, 1881. Moreover, the language used by the Learned Magistrate in the impugned order dated 14.06.2013 is not the verbatim representation of the earlier order dated 26-09-2011 which was set aside by this High Court in CRR No. 100 of 2012, as contended on behalf of the petitioner. It is relevant to point out that it is held in the decision reported in 2010(1) CHN (Cal) 696 (Para 5) that for the purpose of conducting enquiry u/s 202 of the Code of Criminal Procedure, the Learned Magistrate may direct an investigation to be made by a police officer or by such other persons in respect of the complaint where the accused is residing outside the local jurisdiction of the court, if the Learned Magistrate finds that the materials already on record does not inspire the confidence to issue process. In the instant case, the Learned Magistrate did not ask any police officer or other authority to conduct investigation u/s 202 of the Code of Criminal Procedure as the Learned Magistrate formed the opinion that the prima facie case u/s 138 of the Negotiable Instruments Act, 1881 is made out against the accused petitioner.

In view of my above findings I cannot persuade myself to accept the contention made on behalf of the petitioner for setting aside the impugned order passed by the Learned Magistrate. The logical inference is that I do not find any illegality in passing the impugned order by the Learned Magistrate. Nor can I persuade myself to hold that the Learned Magistrate acted in excess of jurisdiction conferred on him by law in issuing process against the petitioner by passing the impugned order dated 14.06.2013 in case no. C-24032 of 2011 in compliance with the direction given by the High Court in CRR No. 100 of 2012. Accordingly, I do not find any merit in the instant criminal revision.

The criminal revision is, thus, dismissed.

Let a copy of this judgment and order be sent down to learned court below for favour of information and necessary action.

Criminal Section is directed to supply urgent Photostat certified copies of this order to the parties, if applied for, after compliance with all necessary formalities.