S. Varadharajan vs G. Rajavelu

R. Mala, J.—Seeking to quash the complaint in S.T.C. No. 951 of 2012 on the file of learned Judicial Magistrate -cum- Fast Track Court No. I, Madurai, the petitioner has filed the present Petition.

Heard both sides.

The learned counsel for the petitioner would submit that the respondent herein, as a complainant, preferred a private complaint in S.T.C. No. 951 of 2012 on the file of learned Judicial Magistrate -cum- Fast Track Court No. I, Madurai, against the petitioner herein, for the offence punishable under Section 138 of Negotiable Instruments Act. The Trial Court, after taking cognizance of offence, issued summons to the petitioner, without considering the fact that the petitioner is residing outside the jurisdiction of the Trial Court and thereby, violated the procedures, as contemplated under Section 202 Cr.P.C. and hence, the complaint is vitiated. To substantiate the same, he relied upon a decision of the Supreme Court in National Bank of Oman Vs. Barakara Abdul Aziz and Another, and also a decision of this Court in Kotak Mahindra Bank v. R. Subramanian [ 2013(1) LW (Crl.) 245] and prayed for quashing the complaint.

Resisting the same, the learned counsel for the respondent would submit that even though a complaint has been filed under Section 200 Cr.P.C., for the offence punishable under Section 138 of Negotiable Instruments Act, once issuance of cheque has been admitted, the petitioner/accused is entitled to invoke presumption under Section 139 of Negotiable Instruments Act. Further, as soon as summons has been received, the petitioner appeared and received the complaint and other materials and P.W.1 has been examined and a part of the cheque amount i.e., Rs. 2,25,000/- has been paid and hence, he is estopped from questioning the postponement of issuance of process and non-compliance of the provision under Section 202 Cr.P.C. Hence, he prayed for dismissal of this petition.

I have considered the rival submissions made on either side and also perused the materials available on record in the form of typed-set of papers.

The respondent, as a complainant, preferred a complaint for the offence punishable under Section 138 of Negotiable Instruments Act, stating that the petitioner herein has borrowed Rs. 5,00,000/- on 26.03.2012, agreeing to repay the same with interest at the rate of 18% per annum, within two months and when he demanded for repayment of the amount, he issued a cheque dated 20.05.2012 for Rs. 5,00,000/- and when it was presented for encashment, that has been returned as ''funds insufficient'' and after issuance of statutory notice, since the petitioner neither repaid the amount nor sent any reply, the complaint has been preferred.

The Trial Court, after recording sworn statement and taking cognizance of offence, issued summons to the petitioner.

The only point that has been raised by the petitioner is non-compliance of the procedures, as contemplated in Section 202 Cr.P.C.

At this juncture, it is appropriate to incorporate Section 202 Cr.P.C., which reads thus:

"202. Postponement of issue of process.--(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192 , may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, 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 under section 200 .

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

Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court 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 Court on an offer in charge of a police station except the power to arrest without warrant."

In my considered view, the said provision shall not be applicable to the present case, since the offence alleged herein is one under Section 138 of Negotiable Instruments Act and not IPC offences and knowing fully well that the petitioner is not having sufficient funds in his account, he issued a cheque for discharging legally subsisting liability. In such circumstances, there is no necessity for investigation by a police officer and the postponement of issuance of process does not arise in the offence punishable under Section 138 of Negotiable Instruments Act.

Coming to the decisions relied upon by the learned counsel for the petitioner in National Bank of Oman Vs. Barakara Abdul Aziz and Another, , and Kotak Mahindra Bank v. R. Subramanian [ 2013(1) LW (Crl.) 245], I am of the view that those citations are not applicable to the facts of the present case, since they are related to offences under IPC and Companies Act.

The learned Trial Judge, after recording the sworn statement of the complainant and taking cognizance of the offence, has correctly issued summons to the accused. In such circumstances, the argument advanced by the learned counsel for the petitioner that the complaint is vitiated on account of non-compliance of the procedures as contemplated in Section 202 Cr.P.C., does not merit acceptance and it is not a ground to quash the complaint. Furthermore, since, on receiving summons, the petitioner entered appearance through his counsel and part of the amount has also been paid, I am of the view that he is not entitled to any relief as sought for. Therefore, finding no merit, this petition is dismissed. Consequently, the connected miscellaneous petitions are also dismissed.

However, the learned Judicial Magistrate -cum- Fast Track Court No. I, Madurai, is directed to dispose of the complaint in S.T.C. No. 951 of 2012, on merits and as per law, within a period of three months from the date of receipt of a copy of this order.