Mrs. Usha Sanghi and Sidharth Sanghi vs The State of Kerala and Joseph Kuncheriah Marattukulam

Justice S.S. Satheesachandran

In all the aforesaid criminal M.Cs which arise from four complaint cases, all of them for the offence u/s 138 of the Negotiable Instruments Act, for short the ''N.I. Act'', the petitioners herein, who are stated to be the directors of a company, are proceeded as the accused. Though the Criminal MCs are eight in number, it is stated, the aforesaid accused in the cases have filed the petitions with two among the accused joining together. Mainly two grounds were set forth to assail the cognizance taken by the Magistrate on the complaints filed in the four cases by the petitioners/accused to invoke the inherent jurisdiction of this court to quash the criminal proceedings against them. The petitioners/accused are residing outside the jurisdiction of the Magistrate before whom the complaints were filed and as such after the amendment incorporated to Section 202 of the Code of Criminal Procedure, for short the ''Code'', by Act 25 of 2005 without the Magistrate examining all witnesses of the complaint no process could have been issued against the accused. The other challenge is that in the complaints filed the essential ingredients necessary to proceed against the petitioners, who are directors of a company, have not been made out, and as such also no process could have been issued against the petitioners, directors of the company, and the company alone, a juristic person, can be proceeded for the offence u/s 138 of the N.I. Act. After the complainant entered appearance, on the submissions made by the counsel on both sides, apparently taking a view that there is divergence of opinion in two single bench decisions rendered by this court with respect to the interpretation placed over. The amendment brought in Section 202 of the Code, a reference was made. That reference has been answered by order dated 13.06.2012. In answering the reference the Division Bench, leaving no room for any doubt over the interpretation to be placed by the amendment brought under Act 25 of 2005 in Section 202 of the Code has stated thus:

.... ordinarily in a prosecution for an offence u/s 138 of N.I. Act, on a proper complaint and enquiry conducted u/s 200 of the Code, the Magistrate is satisfied that the complaint is to be proceeded further by issuing process as provided u/s 204 of the Code, it is not mandatory to conduct an enquiry u/s 202(1) of the Code for the reason that the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction.

That reference answered as above would suffice and meet the first challenge canvassed by the petitioners that the Magistrate was mandatorily bound to conduct an enquiry as per the amendment made to Section 202 of the Code, when the accused persons are residing outside the jurisdiction. Learned counsel for the petitioners fairly submitted that the other challenge raised may be left open to be canvassed before the Magistrate and it need not be looked upon and examined on its merits by this court in exercise of its jurisdiction u/s 482 of the Code. That submission is recorded, and that challenge is left open. Subject to the observations and reservations as made above, the petitions are dismissed.