Bombay High Court
Netcore Solutions Pvt.Ltd vs State Of Kerala & on 21 November, 2011
Bench: A.P. Bhangale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL WRIT PETTION NO. 138/2011
1) Netcore Solutions Pvt.Ltd.
Through its Chief Operating Officer
Mr.Girish Nair Corporate Office
at 402, Peninsula Chambers,
Peninsula Cororate Park
Ganpatrao Kadam Marg
Lower Parel (West)
Mumbai 400 013.
Registered office at
304, Tulsiani Chambers
212, Nariman point
Mumbai-400 021.
2) Rajesh Jain
Aged 43 years,
occu: Managing Director
3) Chandanmal Jain
Aged 72 years opccu: Director
4) Smt.Bhavana w/o Rajesh Jain
Aged 40 years occu: Director/ Housewife
5) Smt.Pushpa w/o Chandanmal Jain
Aged 64 years, occu: Director/housewife.
6) Girish Nair
Aged 45 years
occu: Chief Operating Officer
7) Vivek Jindal
Aged 30 years, occu: vice-President
All address at
Netcore Solutions Pvt.ltd.
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2
304, Tulsiani Chambers
212, Nariman Point
Mumbai 400 021. .. ..PETITIONERS
v e r s u s
1) M/s Pinnacle Teleservices Pvt.Ltd.
Having office at :
1st floor 7, Nawab Layout
Tilak Nagar, New Law College Square
Nagpur 440 010.
2) Amit Srivastava
Aged adult, occu: Director
having office at
1st floor, 7, Nawab Layout
Tilak Nagar, New Law Colege Square
Nagpur 440 010.
3) The State of Maharashtra ..... RESPONDENTS
............................................................................................................................
Mr. Sunil Manohar, Sr.Adv.with Mr Rohit Joshi, Advocate for
petitioners
Mr. S.V.Sirpurkar, Adv.for Respondent nos.1 & 2
Mr. A.S. Sonare, APP for Respondent No.3
.......................................................................................................................
CORAM: A.P.BHANGALE , J.
DATED : 21 November, 2011
st
ORAL JUDGMENT :
By consent of respective counsel, the matter is taken up for final
hearing.
2. By means of this Petition, the petitioners prayed for setting aside
the impugned order of issuance of process dated 16.12.2010 passed by the
learned Judicial Magistrate, First Class and Special Court under section 138
of the Negotiable Instruments Act ( henceforth," the N.I.Act" in short) in
Summary Criminal Case No.16047/2010 passed against the petitioners
( original accused nos.1 to 7).
3. It is the grievance of the petitioners that all the accused against
whom a complaint under section 138 of the N.I. Act was lodged were
resident of Mumbai and, as such, resided beyond the jurisdiction of the
learned trial Magistrate at Nagpur. The trial Magistrate chose to issue
process merely after perusing the complaint, verification and the documents
filed by the complainant. The impugned order was passed on the basis of
prima facie view of accusation against the accused for offence punishable
under section 138 of the N.I. Act.
4. Mr. Sunil Manohar, learned senior Advocate for the petitioners
submitted with reference to the ruling in K.T.Joseph vs. State of Kerala &
another reported in (2009) 15 SCC page 199 wherein the Apex Court
considered the necessity of enquiry under section 202 of the Code of Crime
Procedure, 1973 ( in short" "Cr.P.C.") after Section 202 of Cr.P.C. was
amended with effect from 23rd June 2006 by Central Amending Act
25/2005. Thus, according to Shri Manohar, considering the amended
provision it is mandatory on the part of the learned Magistrate to conduct an
enquiry under section 202 of the Cr.P.C. And to consider the sworn
statements of the witnesses at the stage of taking cognizance. It became
mandatory particularly when the accused are resident of a place beyond the
local limits of the area in which the learned trial Magistrate is exercising his
jurisdiction. The ruling is also followed in S.C. Mathur (Capt) and another
vs. Elektronik Lab. & others others reported in 2010 (2) Bom,.C.R. (Cri)
385. This Court held with reference to the ruling in K T Joseph vs. State of
Kerala (supra) that the view of the Supreme Court is binding upon this
Court and the said decision cannot be brushed aside against the accused who
are the residents beyond the place in which the Magistrate concerned is
exercising his jurisdiction. The inquiry became mandatory as the Apex Court
observed that the legal position is unexceptionable. Reference in this regard
is also made to ruling in Neelu Chopra and another vs. Bharti reported in
(2009) 10 SCC Page 184 in support of the submission that the impugned
order is liable to be quashed and set aside for non-observance of mandatory
legal position.
5. On behalf of the complainant / respondents 1 and 2 Mr.
S.V.Sirpurkar, learned Advocate submitted that the order regarding issuance
of process is revisable and, therefore, the petition under section 482
ought not to be entertained. Learned Advocate for respondents further
submitted that in the ruling of Sau. Sangita w/o Ashok Borawar vs.
Sau.Surekha w/o Nandu Borawar and another : 2010 All MR (Cri)
3034 the provisions of regarding taking cognizance of the complaint of
offences were considered. My attention is invited to paragraph 11 of the
said ruling regarding different modes prescribed by law and available with
the Magistrate particularly at the pre-cognizance stage when Magistrate
may order investigation under section 156 (3) of the Cr.P.C. and at the
stage of taking cognizance, requirement to proceed against under section
200 and subsequent sections of the Cr.P.C. as mentioned in paragraphs 11
and 12 of the ruling. It appears that the observations made by this Court
were with reference to Devarapalli Reddy vs. Narayana Reddy and
others : AIR 1976 SC 1672. The ruling in K.T.Joseph, it appears, was not
brought to the notice of this Court in Sau.Sangita's case ( supra) regarding
amendment made in Section 202 Cr.P.C. for postponement of issuance of
process particularly when accused are resident of a place beyond the local
limits of the jurisdiction of the Magistrate concerned.
6. Coming back to the facts of the present case, it cannot be disputed
that the complaint was lodged in the Court of learned JMFC and Special
Court under section 138 of the N.I. Act at Nagpur, whereas all the accused
described in the complaint appears to have their residence at addresses in
Mumbai. Under these circumstances, prima facie, it appears that the learned
trial Magistrate ought to have postponed the issuance of process in view of the
mandatory provision under section 202, as observed in this regard by the
Apex Court in K T Joseph's case ( supra). After perusing the contents of the
complaint as also verification statement of the complainant the learned trial
Magistrate ought to have postponed the issuance of process in the facts and
circumstances of the case when accused were resident of a place beyond the
jurisdiction of the learned trial Magistrate concerned. For this reason and
considering the rulings cited before me, the impugned order must be held as
unsustainable and, therefore, cannot be countenanced. The same is therefore,
quashed and set aside. The learned JMFC, Nagpur and Special Court under
section 138 of the N.I. Act shall exercise discretion in accordance with
amended provision of Section 202 Cr.P.C. and in the light of the rulings
referred above. The complainant shall appear before the learned JMFC and
th
Special Court u/s 138, on 5 December, 2011 . The petition is allowed
accordingly. In the circumstances, there shall be no order as to costs.
JUDGE
sahare
