R. Subramanian vs R. Muthukamatchi

N. Arumugham, J.—This Revision is directed against the order passed by the Judicial Magistrate No. 1, Sivaganga in C.C. No. 13330 of

1995 on 14.11.1995 issuing process on taking the complaint on file, to the accused for the offence u/s 138 of the Negotiable Instruments Act.

On 9.3.1995, the Petitioner herein is said to have given a cheque bearing No. 906008 drawn in Indian Bank, Devangapet Branch, Coimbatore-

1 for a sum of Rs. 15 lakhs in favour of the Respondent, in lieu of repayment of a debt due to the Respondent by the Petitioner herein. When the

Respondent presented the said cheque for encashment through Indian Bank, Sivaganga Branch, it was bounced on 4.8.1995 on the ground of

insufficiency of fund. Therefore, a notice dated 9-8-1995 was issued to the Petitioner by the Respondent through his advocate demanding the

payment of the cheque amount which was duly acknowledged by the Petitioner. But however, a reply dated 12.8.1995 was given by the Petitioner

through his counsel denying the liability and the circumstances under which the blank cheque was obtained and further, it was specifically

contended that he never borrowed any money, nor gave the cheque to the Respondent herein. The defence of the Petitioner in the reply notice at

the earliest point of time, namely, four days after the notice was one of total denial of the very negotiable instrument itself alleged to have been given

by him and there was no debt at all. He has further stated that the cheque leaf in question was missing, when he was driving a two wheeler on

5.7.1995 in Coimbatore, along with another connected document and that in this connection, a complaint was lodged to B.2 R.S. Puram Police

Station on the same day itself and the matter is under investigation. The concerned Bank was also intimated in writing with regard to the above fact.

Therefore, in his reply, the Petitioner has requested the return of the cheque within 48 hours on receipt of the reply.

It has also been alleged that upon the basis of the bounced cheque, the Respondent herein has filed the complaint before the Judicial Magistrate

No. 1, Sivaganga against the Petitioner for the offence u/s 138 of the Negotiable Instruments Act on 14.11.1995 and the Respondent has also

given a complaint before the District Crime Branch, P.M.T. District, Sivaganga which was registered in Crime No. 3 of 1995 u/s 420 of the Indian

Penal Code on 18.8.1995. Apart from the above, the Petitioner has taken some other grounds also by way of defence denying his culpability for

the offence u/s 138 of the Negotiable Instruments Act. His main grievance seems to be that the learned Judicial Magistrate No. 1, Sivaganga, on

getting the written complaint u/s 200 of the Code of Criminal Procedure from the Respondent, without conducting any enquiry u/s 202 of the Code

of Criminal Procedure, ordered for the issuance of process u/s 204 of the Code of Criminal Procedure which order, according to him, suffers legal

sanctity and propriety and therefore, he has come forward with the present Revision challenging the impugned order.

After admitting the Revision for its merits to be probed and granting stay, notice has been ordered on 20.12.1995. Though the notice has been

duly served upon the Respondent, as per the case records, the case has been posted in the cause list by giving top priority under Pilot Project

Scheme and taken up, none entered appearance on behalf of the Respondent either by himself or by any member of the Bar and no representation

was made even on his behalf. However, learned Counsel for the Petitioner Mr. K.V. Sridharan was present and he argued the case on behalf of

the Petitioner. Thus, though the Respondent was absent, the case was heard on merits as it is under Pilot Project Scheme as well as pending for

more than one year.

The only point of attack dwelt by the learned Counsel Mr. K.V. Sridharan against the impugned order was that for the offence u/s 138 of the

Negotiable Instruments Act, said to have been committed by the Revision Petitioner that the cheque issued by the Revision Petitioner was returned

as bounce for insufficiency of funds, followed by the exchange of notice and reply, a private complaint was filed u/s 200 of the Code of Criminal

Procedure before the Judicial Magistrate No. 1, Sivaganga, and the learned Magistrate has not taken cognizance of the offence after having

conducted an enquiry as contemplated u/s 202 of the Code of Criminal Procedure. Learned Counsel would contend further that to enable the

Magistrate to issue process for any offence as stipulated u/s 204 of the Code, he must conduct an enquiry as contemplated and provided u/s 202

of the Code of Criminal Procedure and unless and until the enquiry has been conducted, issuance of process clearly amounts to abuse of process

of law and therefore, any order issuing process u/s 204 of the Code without conducting any enquiry u/s 202 of the Code or sending the complaint

for investigation by the Police is incompetent and applying the said ratio, the present case is hit by the abovesaid legal lacuna and it is liable to be

set aside.

In the light of the above, it has become necessary for me to advert to Sections 200, 202 and 204 of the Code of Criminal Procedure to

appreciate the nuggets of the law in its proper legal perspective. Section 200 of the Code says that,

A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the

substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate;

Provided that, when the complaint is made in writing, the Magistrate need not examine the complaint and the witnesses:

(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or

(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate u/s 192;

Provided further if the Magistrate makes over the case to another Magistrate u/s 194 after examining the complaint and the witness, the latter

Magistrate need not re-examine them.

Section 202 of the Code reads like this:

(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance of which has been made over to him u/s

192, 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 officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for

proceeding;

Provided that no such direction for investigation shall be made:

(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or

(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath u/s

200.

(2) In an inquiry under Sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on a oath.

Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Courts of Session, he shall call upon the

complainant to produce all his witnesses and examine them on oath.

(3) If an investigation under Sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers

conferred by this Code on an officer in charge of a police Station except the power to arrest without warrant.

Section 204 of Chapter XVI of the Code of Criminal Procedure runs like this:

(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appear to be -

(a) a summons case, he shall issue his summons for the attendance of the accused, or

(b) a warrant case, he may issue a warrant, or if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time

before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.

(2) No summons or warrant shall be issued against the accused under Sub-section (1) until a list of the prosecution witnesses has been filed.

(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under Sub-section (1) shall be accompanied by

copy of such complaint.

(4) When by any law for the time being in force any process fees or other fees are payable, no process shall be issued until the fees are paid and, if

such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.

(5) Nothing in this Section shall be deemed to affect the provisions of Section 87.

My attention was drawn to a decision held in the case of Gopi Nath and Sons Vs. State of Himachal Pradesh and Another, for the following

ratio:

It would thus necessarily follow that before directing issue of process against an accused person, the Magistrate must apply his judicial mind to the

material before him and ascertain not only that there is sufficient ground for proceeding further in the complaint but also the nature of the offence for

which the accused need be summoned. It necessarily follows that under this provision the Magistrate does not enjoy an unrestricted power to

summon a person at his whim, fancy or caprice simply because a complaint has been filed against him. Although strictly speaking it is no

requirement of Section 204 that an order directing issue of process against the accused be supported by detailed reasons, nonetheless this order

has to be made by the Magistrate after applying his judicial mind to the material on record and this application of mind must be exhibited in the

order itself in one way or the other. An order passed by the Magistrate without application of such mind would be without jurisdiction and liable to

be quashed.

In Mac Culloch Vs. The State and Another, it was also held like this:

The provisions of Section 200 are not a mere formality but have been intended by the legislature to be given effect to for the protection of the

accused persons against unwarranted complaints.

In C.K. Raghunath and 4 Ors. v. S. Ganapathi 1989 L.W. (Cri.) 423, Dr. David Annoussamy, J., as he then was, had the occasion to observe

as follows:

When a private complaint is filed and if the Magistrate has taken cognizance thereof, he will examine upon oath the complainant and the witnesses

present, if any u/s 200 Code of Criminal Procedure. After doing so, he will have to assert whether further enquiry is necessary for the purpose of

deciding whether or not there is sufficient ground for proceeding u/s 202 Code of Criminal Procedure and take action accordingly, if further

investigation is necessary. Upon being possessed with all the information necessary he will either dismiss the complaint u/s 203 Code of Criminal

Procedure or issue summons u/s 204 Code of Criminal Procedure, if he finds that there is sufficient ground for proceeding. The fact of issuing

process to a person to appear before a Court is an important act, which should not be performed perfunctorily and automatically. The Magistrate

should apply his mind before taking such a step.

Therefore, it is axiomatic that before issuing process u/s 204 of the Code of Criminal Procedure, the Magistrate, after taking cognizance of, by

examining the complainant or the witnesses present upon oath, if any, will have to ascertain whether further enquiry is necessary for the purpose of

deciding whether or not there is sufficient ground to proceed with u/s 202 of the Code and take action accordingly, if further investigation is

necessary and only on being possessed with all information which would become necessary, he will either dismiss the complaint u/s 203 of the

Code or issue summons u/s 204 of the Code, if he finds that there is sufficient ground for proceeding with further. The fact of issuing process to a

person to appear before the Court is an important act which would not be performed perfunctorily, mechanically or automatically and as it would

follow by the proceedings u/s 202 of the Code, he does not enjoy any unrestricted power to summon a person at his whim, fancy or caprice

simply because a complaint has been filed against an accused. As was held already and strictly speaking, it is the requirement of Section 204 of the

Code that an order directing issue of process against the accused be supported by detailed reasons Nonetheless, this order has to made by the

Magistrate after applying his judicial mind to the materials on record and this application of mind must be exhibited in the order itself in one way or

other and the order passed by the Magistrate without application of such mind would be without jurisdiction and liable to be interfered with.

Applying the said ratio to the facts of the instant case, as argued and contended, by examining the complainant alone, the Magistrate seems to

have proceeded with further and issued process u/s 204 of the Code of Criminal Procedure. If the legal ratio adverted to above is imported to the

facts of the instant case, properly conducted enquiry or the reasoning expected to be given legally by the Magistrate even by a crisp order is totally

absent in this case and so much so, the impugned order issuing process u/s 204 of the Code, a non speaking one, as it is, cannot be sustained. The

adaptation of the very words, ''there is sufficient ground for proceeding'' for the purpose of deciding or proceeding further is clearly indicative of

the restrictive and directive power of the Magistrate given by the Code for issuing process. Apparently the above legal exercise has not been done

by the learned Magistrate in the instant case. The contention of the learned Counsel Mr. K.V. Sridharan in this case is that the very defence

projected on behalf of the Revision Petitioner, namely that he has denied the total involvement by borrowing money or giving any negotiable

instrument and its connected contention are to be considered by the Magistrate even at that stage and therefore, the impugned order is not correct.

With great constraint, I do not find any merit in this contention for the reasoning, the impugned order challenged in this revision is the very order

which directed for the issuance of process to the accused u/s 204 of the Code and before the receipt of the process issued by the Court, it is well

settled, the accused cannot come and place his defence even before the learned Magistrate pointing out the adequacy, or inadequacy or sufficiency

of the materials to be proceeded with for any offence u/s 204 of the Code. It was brought to my notice the following case law held by the Apex

Court in Sathish Mehra v. Delhi Administration 1996 S.C.C. (Cri.) 1104, which runs as under:

Similar situation arises u/s 239 of the Code (which deals with trial of warrant cases on police report). In that situation, the Magistrate has to afford

the prosecution and the accused an opportunity of being heard besides considering the police report and the documents sent therewith. At these

two stages the Code enjoins on the Court to give audience to the accused for deciding whether it is necessary to proceed to the next stage. It is a

matter of exercise of judicial Mind. There is nothing in the Code which shrinks the scope of such audience to oral arguments. If the accused

succeeds in producing any reliable material at that stage which might fatally affect even the very sustainability of the case, it is unjust to suggest that

no such material shall be looked into by the court at that stage. Here the ''ground'' may be any valid ground including insufficiency of evidence to

prove the charge.

With very great respect, I feel that the remedy provided u/s 239 of the Code cannot be made available to he Petitioner at this stage for the very

reasoning that the order issuing process to the accused itself is being challenged in this Revision. Therefore, I am quite unable to accept the

contention made by the learned Counsel for the Revision Petitioner, in this regard.

However, for all the lacunae and reasonings given above, I am inclined to set aside the impugned order passed by the learned Judicial

Magistrate without applying his mind as to the existence of the strength and quantum of prima facie ground, to proceed further and issue the

process as provided under Sections 202 and 204 of the Code. This would not mean that the Respondent has lost all of his case. For the laches

committed by the Respondent, in my considered view, let not the litigant public suffer, whether he is the revison Petitioner or the

accused/Respondent. The ends of justice would require and impel me, while setting aside the impugned order, to remit the whole matter to the file

of the learned Judicial Magistrate No. 1, Sivaganga, to reconsider and proceed in accordance with law, as per the directions given above.

Accordingly, for the said prupose, the Revision has to succeed for the limited purpose, however, the whole matter is remitted.

In the result, the Revision succeeds and accordingly, it is allowed and the order passed by the learned Judicial Magistrate No. 1, Sivaganga in

C.C. No. 1330 of 1995 dated 14.11.1195 is hereby set aside and the whole matter is, for the directions and observations given above, remitted

to the learned trial Magistrate to proceed in accordance with law.