Girish Dharmchand Chordiya ... vs Neeta Sachin Chandak And Anr
2017 Latest Caselaw 9336 Bom

                                (1)                 Cri .W.P. 997 of 2017

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD

                   CRIMINAL WRIT PETITION NO.  997
                                                  -201
                                                      7
                                                        


      Girish Dharmchand Chordiya(Jain),
      Age : 35 Years, Occu. Trader,
      R/o. Shop No.1, Kanak Tours &
      Travels, in front of New Era English
      High School, Near Satyam Sweets
      Govind Nagar, Nashik 42009                        ...PETITIONER.
                                                        (Ori. Accused)

         VERSUS

1.    Neeta Sachin Chandak,
      Age : 49 Years, Occu. Trader,
      R/o. Rinku Apartment, In front of
      Mahavir Bhavan, Kumbharwada,
      Aurangpura, Aurangabad.

2.    The State of Maharashtra
      Through In charge of Jawahar Nagar
      Police Station,Aurangabad.                          ..RESPONDENTS

                              ....
         Mr. M.K. Bhosale h/f P.V. Barde, Advocate, for the Petitioner.
         Mr. A.A. Jagatkar, Addl. Public Prosecutor for Respondent No.2.
                              ....

                                 CORAM :  PRAKASH D.NAIK, J.

RESERVE ON DATE : 13th NOVEMBER, 2017 UDGEMENT PRONOUNCED ON : 6th DECEMBER,2017

(2) Cri .W.P. 997 of 2017

PER COURT :-

1. The petitioner has invoked the supervisory jurisdiction,

under Article 227 of the Constitution of India and challenged the

Judgment and order dated 6th May, 2017, passed by the Learned

Additional Sessions, Judge, Aurangabad in Criminal Revision petition

No. 84 of 2017, confirming the order dated 16th November, 2016,

passed by Judicial Magistrate, First Class, Aurangabad in Summery

Criminal Case No. 8509 of 2016.

2. The factual matrix of the matter is as under :-

(a) Respondent No.1 filed a complaint viz Summary Criminal Case

No. 8509 of 2016, before the Court of Judicial Magistrate, First Class,

Aurangabad. In the complaint, it was alleged that in the year 2014,

the accused requested the complainant to start a business of Tours

and Travels and Money Exchange in partnership at Aurangabad and

demanded Rupees Ten Lakhs with understanding that partnership

deed will be executed in between him and the complainant.

Accordingly, complainant paid Rupees Ten lakhs to the accused.

(b)    On   the   pretext   of   taking   franchisee   of   Heena   Tours,   accused 





                                   (3)                       Cri .W.P. 997 of 2017

again demanded an amount of Rupees Ten Lakhs towards deposit to

Heena Tours. Relying on the assurance, the complainant paid an

amount of Rupees Ten Lakhs to the accused on second occasion.

Thereafter, again on pretext of bulky booking in tours and travels took

Rupees Four Lakhs from the complainant with assurance to return it

within fifteen days. It is further alleged that the accused issued

cheque of Rs. 20,00,000/-( Rupees Twenty Lakhs) as part payment

out of Rs. 30,00,000/- (Rupees Thirty lakhs) given by the

complainant to the accused and Rs.6,00,000/- ( Rupees Six Lakhs) as

benefit of her share out of joint business of Tours and Travels.

(c) The complainant presented three cheques for its realization,

which were returned unpaid on the ground that funds were

insufficient and Account Closed. Demand notice was issued by the

complainant on 9th September, 2016. On failure to make the

payment, the complainant filed the complaint on 25.10.2016 for the

offence punishable under Section 138 of the Negotiable Instruments

Act.

3. The trial Court vide order dated 16th November, 2016, issued

(4) Cri .W.P. 997 of 2017

process against the petitioner for the offence punishable under

Section 138 of the Negotiable Instruments Act.

4. The petitioner challenged the aforesaid order by preferring

Criminal Revision Petition No. 84 of 2017, before the Court of learned

Additional Sessions Judge, Aurangabad on 1 st April, 2017. The said

Revision Application was rejected vide order dated 6th May, 2017.

5. The learned Advocate for the petitioner challenged the

proceeding on the sole ground that before issuing process, the

learned Magistrate failed to follow mandatory provisions of Section

202 of the Code of Criminal Procedure. It is submitted that accused

was resident of Nashik and the complaint is filed in the Court of

Judicial Magistrate, First Class, Aurangabad. Since the accused was

residing beyond the jurisdiction of the trial Court, it was mandatory

for the Court to conduct enquiry under Section 202 of the Code of

Criminal Procedure. It is submitted that on account of failure to take

recourse to Section 202 of the Code of Criminal Procedure, which was

mandatory, the order issuing process passed by the Trial Court is bad

(5) Cri .W.P. 997 of 2017

in law and deserves to be quashed and set-aside. It is submitted that,

the trial Court as well as Sessions Court have failed to appreciate the

provisions of Section 202 of the Code of Criminal Procedure and

erroneously passed the impugned orders.

6. Respondent No.1 is the complainant in the impugned complaint.

On account of discharge of alleged liability, the cheques were issued

by the accused, which were dishonoured. The learned Judicial

Magistrate, First Class, issued the process on 16 th November, 2016.

While passing the said order, the said Court has observed that, on

perusal of the complaint, verification statement and the documents,

prima facie case is made out against the accused for the offence

punishable under Section 138 of the Negotiable Instruments Act.

Hence, the Court issued the process for the said offence.

7. The petitioner has relied upon the decision of this Court, in the

Solutions Private Limited, Mumbai and Others Vs. case of Nectar

Penakle Industry Private Limited, and Others 2012(3) Mh.L.J.

725    during   the   course   of   hearing   of   the   revision   case   before   the 




                                 (6)                        Cri .W.P. 997 of 2017

Sessions Court. In the said decision, this Court has considered the

issue relating to compliance of the provision of Section 202 of the

Code of Criminal Procedure. It was observed that accused was

residing beyond the jurisdiction of the Court and the process was

issued against them by the Trial Court without complying mandatory

provision of Section 202 of the Code of Criminal Procedure. The

Sessions Court considered the decision of this Court, in the case of

Dr. (Mrs.) Rajul Ketan Raj Vs. Reliance Capital Limited And

Another ( 2016(1) BCR 807 ) as well as the other decisions wherein it

was observed that, it is not required to hold enquiry under Section

202 of the Code of Criminal Procedure.

8. The Supreme Court in the case of Abhijit Pawar Vs. Hemant

Nimbalkar and Anr (supra) has observed that enquiry under Section

202 of the Code of Criminal Procedure is required to be conducted in

the event the accused are residing beyond the jurisdiction of the trial

Court in accordance with the amended provision of Section 202 of the

Code of Criminal Procedure. However, it is pertinent to note that the

said observations were made in relation to the offence under the

(7) Cri .W.P. 997 of 2017

Indian Penal Code. Similar view was expressed by the Apex Court in

the other decisions also. However, this Court in several decisions,

some of which are referred by the Revisional Court, has consistently

taken view that while deciding the complaint under Section 138 of the

Negotiable Instrument Act, it is not mandatory to hold enquiry under

Section 202 of the Code of Criminal Procedure. The Court has

distinguished the decisions wherein the Court has taken view with

regard to the enquiry under Section 202 of the Code of Criminal

Procedure qua the proceedings under the Penal Code.

9. In the decision of this Court in the case of Dr. (Mrs.) Rajul

Ketan Raj Vs. Reliance Capital Ltd and Another (supra) it is

observed as under :-

''The very object of the Act will stand defeated if the enquiry

under Sub Section (1) of Section 202(1) of Cr.P.C is held to be

mandatory, in the complaint under Section 138 of the Negotiable

Instruments Act. ''

In the said decision, the Court has also referred to the decision

of this Court in the case of Bansilal Kabra Vs. Global Trade

(8) Cri .W.P. 997 of 2017

Finance Limited ( 2010 All M.R. (Cri.) 3168 ) wherein similar view

was taken with regard to provision of Section 202 of the Code of

Criminal Procedure. The Court has referred to decisions in the case of

Nectar Solutions Private Limited, Mumbai and Others Vs.

Penakle Industry Private Limited, and Others ( 2012(3) Mh.L.J.

725 ) as well as decision of the Hon'ble Supreme Court in the case of

Vijay Dhanuka ETC Vs. Najima Mamtaj ETC ( 2014 All MR (Cri.)

1924 (SC). The Hon'ble Supreme Court in the said decision has

considered the issue relating to compliance of Section 202 of the Code

of Criminal Procedure, qua the prosecution under the Indian Penal

Code. This Court has drawn distinction between the proceedings

under Section 138 of the Negotiable Instruments Act and the

prosecution under the Indian Penal Code. Taking into consideration

the object of the Act and the requisite provision of the Negotiable

Instruments Act, it was observed that in accordance with scheme of

the said Act, the enquiry contemplated under Section 202 of the Code

of Criminal Procedure is not mandatory. In the decision relied upon

by the Advocate for the petitioner, in the case of Abhiji Pawar Vs.

(9) Cri .W.P. 997 of 2017

hemant Madhukar Nimbalkar and Anr. (supra) the Hon'ble

Supreme Court has considered the scope of Section 202 of the Code

of Criminal Procedure with regard to the complaint which was filed for

the offence under the Indian Penal Code. Similar observations were

made in the decision of Vijay Dhanuka ETC Vs. Najima Mamtaj

ETC ( 2014 All MR (Cri.) 1924 (SC), which was taken into

consideration by this Court in the case of Dr. Rajul Ketan Raj Vs.

Reliance Capital Ltd and Another (supra) . This Court in the

decision of Vijay Tata Ravipathy Vs. Media Scope Publication

(India) Pvt Limited and Another Vs. State in Criminal

Application No. 1248 of 2016 has reiterated and accepted the

aforesaid decision in the case of Dr. Rajul Ketan Raj Vs. Reliance

Capital Ltd and Another (supra) and it was observed that enquiry

stipulated under Section 202 of the Code of Criminal Procedure is not

mandatory in the proceedings arising out of the Negotiable

Instruments Act. In my opinion, the enquiry under Section 202 of

the Code of Criminal Procedure is not mandatory in proceeding

under Section 138 of the Negotiable Instrument Act. I am in

( 10 ) Cri .W.P. 997 of 2017

agreement with view expressed by this Court in the case of Bansilal

Kabra as well as Dr. Rajul Ketan Raj.

10. In view of the above, I do not find any reason to interfere with

the order passed by the learned Magistrate issuing process and the

order passed by the Sessions Court, Aurangabad dismissing the

revision application preferred by the petitioner.

Hence, I pass the following order.

ORDER

Criminal Writ Petition No. 997 of 2017 stands dismissed.

[PRAKASH D.NAIK, J.]

YSK/Cri .W.P. 997 of 2017