Bombay High Court

Shivshankar Shrikrushna Dhole vs State Of Mah., Thr. A G P Akola on 10 August, 2021

Bench: Manish Pitale

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               NAGPUR BENCH AT NAGPUR


           Criminal Writ Petition No. 716 of 2019


PETITIONER:                        Shivshankar Shrikrushna Dhole
                                   aged about 30 years, Occ. Private Service,
                                   R/o Gopalkhed Tq. & Dist. Akola

                                       Vs.

RESPONDENTS : 1]                   State of Maharashtra,
                                   Through A.G.P. Akola

                         2]        Sanjay Dnyandeorao Wakode
                                   Aged 45 years, Occ. Electrician,
                                   Kaplewadi, Chanchodi Road,
                                   Akola, Tq. & Dist. Akola

       Mr. P.S. Gavai, Advocate for the petitioner.
       Mr. S.D. Sirpurkar, APP for the respondent No.1



                                         CORAM :      MANISH PITALE, J.

                                         DATE :       AUGUST 10 , 2021


        ORAL JUDGMENT

Rule. Rule is made returnable forthwith. Heard finally

with the consent of learned counsel appearing for rival

parties.

2. By this Writ petition, the petitioner (original accused)

in a Complaint filed by respondent No.2 under Section 138 of

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the Negotiable Instruments Act, 1881, has approached this

Court, seeking quashing and setting aside of order passed by

the Sessions Court and also an order passed by the Court of

Judicial Magistrate First Class, Akola, whereby process was

issued in the Complaint filed by respondent No.2.

3. The short point raised in the present Petition is that the

process could not have been issued by order dated

14/06/2017, by the Court of Judicial Magistrate First Class,

Court No.10, Akola, for the reason that mandatory

requirement under Section 202 of the Criminal Procedure

Code (Cr.P.C.) was not complied with. It is contended on

behalf of the petitioner that the aforesaid provision was

required to be complied with for the reason that the

petitioner is a resident of a place outside the jurisdiction of

the Magistrate.

4. On the Revision Application filed by the petitioner, the

Court of Additional Sessions Judge, Akola in judgment and

order dated 02/05/2019, held that since the Magistrate had

perused the Complaint and the verification statement on oath

of the respondent No.2 (complainant), there appeared to be

sufficient compliance of requirement of Section 202 of Cr.P.C.

On this basis, the Revision Application was dismissed.

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5. This Court issued notice in the present Writ Petition on

27/08/2019 and on 04/01/2021, the Petition was admitted

with interim stay of further proceedings before the

Magistrate.

6. The respondent No.2 is served and he has chosen not

to appear before this Court. The respondent No.1 - State is

represented by the learned APP.

7. Mr. P.S. Gavai, learned counsel appearing for the

petitioner invited attention of this Court to the recent

judgment of the Constitution Bench of the Hon'ble Supreme

Court reported in AIR 2021 SC 1957 (in Re : Expeditious

Trial of Cases Under Section 138 of N.I. Act, 1881). The

learned counsel relied upon paragraphs 10, 11 and 12 of the

said judgment to contend that now it was authoratively held

by the Hon'ble Supreme Court that enquiry under Section

202 of the Cr.P.C., was mandatory before issuance of process

in Complaints filed under Section 138 of the N.I. Act. The

learned counsel further relied upon judgment of this Court in

the case of Satish alias Rajendra Harbans Tiwari and Ors. Vs.

State of Maharashtra and Anr. 2010 CRI.L.J. 4089, wherein it

has been held that perusal of the Complaint and verification

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statement by the Magistrate is not enough to comply with the

enquiry contemplated under Section 202 of Cr.P.C.. Applying

the said position of law to the facts of the present case, the

learned counsel appearing for the petitioner submitted that

the impugned orders deserves to be set aside.

8. Mr. S.D. Sirpurkar, learned A.P.P. appearing for the

respondent No.1 submitted that in the facts of the present

case, the Magistrate was satisfied with the contents of the

Complaint and verification statement on oath submitted by

the respondent No.2 and having satisfied himself about the

veracity of the claims made in the Complaint, process was

issued. It was submitted that therefore, interference is not

warranted. As noted above, the respondent No.2 chose not

to appear before this Court, despite service of notice.

9. Section 202 of Cr.P.C. mandates that when the accused

is resident of a place outside the jurisdiction of the concerned

Magistrate, an enquiry as contemplated under the said

provision has to be undertaken. It appears that there was

some conflict in the various opinions, as to whether the said

mandatory requirement under Section 202 of Cr.P.C. applied

to Complaints under Section 138 of the N.I. Act. In the said

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judgment, the Constitution Bench of the Hon'ble Supreme

Court in the case of Re : Expeditious Trial of Cases Under

Section 138 of N.I. Act, 1881 (supra), has authoratively laid

down that the enquiry contemplated under Section 202 of

Cr.P.C. is required to be conducted even in Complaints filed

under Section 138 of the N.I.Act. The only observation made

in this regard is that the enquiry contemplated under Section

202 of Cr.P.C. in the context of Complaints under Section 138

of the N.I. Act, would be satisfied if the evidence of the

witness is taken on affidavit, in view of Section 145 of the

N.I. Act. This has been observed in the backdrop of the

necessity to speed up proceedings in Complaints under

Section 138 of the N.I.Act.

10. The relevant conclusions rendered by the Hon'ble

Supreme Court in the said judgment read as follows:

"1) The High Courts are requested to issue practice directions to the Magistrates to record reasons before converting trial of complaints under Section 138 of the Act from summary trial to summons trial.

2) Inquiry shall be conducted on receipt of complaints under Section 138 of the Act to arrive at sufficient grounds to proceed against the accused, when such accused resides beyond the territorial jurisdiction of the Court.

3) For the conduct of inquiry under Section 202 of the Code, evidence of witnesses on bhelaf of the

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complainant shall be permitted to be taken on affidavit. In suitable cases, the Magistrate can restrict the inquiry to examination of documents without insisting for examination of witnesses."

11. The aforesaid position laid down by the Hon'ble

Supreme Court confirms the view of this Court in the

aforemention judgment in the case of Satish alias Rajendra

Harbans Tiwari and Ors. Vs. State of Maharashtra (supra),

wherein this Court held that when the Magistrate issued

process only upon perusing the Complaint and verification

statement on oath by the complainant, it is not sufficient

compliance of Section 202 of Cr.P.C.

12. Applying the said position of law to the admitted facts

of the case, it becomes clear that the present Writ Petition

deserves to be allowed. The material on record clearly shows

that while issuing process, by order dated 14/06/2017, the