Bombay High Court

Archana Rajendra Jasud vs State Of Maharashtra And Anr on 14 December, 2023

Author: Sarang V. Kotwal

Bench: Sarang V. Kotwal

2023:BHC-AS:37919



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                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CRIMINAL APPELLATE JURISDICTION

                             CRIMINAL WRIT PETITION (ST) NO.23233 OF 2023

                    Archana Rajendra Jasud                           .... Petitioner

                                  versus

                    State of Maharashtra & Anr.                      .... Respondents
                                                     .......

                    •     Mr. Niranjan Mundargi a/w Sunny Punamiya i/b. Dilip H.
                          Shukla, Advocate for Petitioner.
                    •     Mr. Arfan Sait, APP for the State/Respondent.

                                               CORAM    : SARANG V. KOTWAL, J.

                                               DATE     : 14th DECEMBER, 2023

                    P.C. :

1. The Petitioner is the original accused No.2 in C.C.

No.1422/SS/2018, before the Metropolitan Magistrate, 58 th

Court, Bandra, Mumbai. The Petitioner has challenged the order

dated 11/07/2019 passed by the learned Magistrate issuing

process against the Applicant for commission of offence

punishable u/s 138 of the Negotiable Instruments Act. The said

order was challenged before the Additional Sessions Judge,

Greater Mumbai in Criminal Revision Application No. 1400 of

Nesarikar

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2019. It was rejected vide the order dated 1/09/2023.

2. Heard Mr. Niranjan Mundargi, learned counsel for the

Petitioner and Ms Sangita D. Shinde, learned APP for the State.

3. Though various grounds on merits of the matter are

mentioned in the petition memo; the only point which is

canvassed before me by the learned counsel for the Petitioner is

regarding non-compliance of Section 202 of CrPC. The Petitioner

is residing at Pune as is mentioned in the cause title of the

complaint itself. She was residing outside the jurisdiction of the

learned Magistrate who had passed the impugned order and

therefore, the enquiry u/s 202 of Cr.P.C. was mandatory. In

support of his case, learned counsel relied on the judgment of

Single Judge of this Court at Aurangabad Bench, passed in

Criminal Writ Petition No.1416 of 2021 on 22/02/2023 in the

case of Oneup Entertainment Pvt. Ltd. Vs. Vishwakalyan

Multistate Credit Co-op. Society Ltd. In that judgment it was

observed that inquiry U/s 202 of Cr.P.C. was not conducted

though it was mandatory, as the accused in that case was

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residing outside the territorial jurisdiction of the Court issuing

process.

4. I have considered these submissions. I am unable to

agree with the submissions made by the learned counsel for the

Petitioner because the issue raised by the learned counsel for the

Petitioner is covered by the observations made by a Five Judge

Bench of the Hon'ble Supreme Court in Suo Motu Writ Petition

(Cri.) No.2 of 2020 decided on 16/04/2021 as reported in 2021

SCC Online SC 325.

5. The impugned order passed by the learned Magistrate

reads thus:

" As per order in Criminal Revision Application No.117/2019 the complainant filed the fresh verification statement and affidavit of evidence. I have perused the pleadings and averments in the complaint, fresh verification and affidavit of evidence. The accused No.2 issued the subject cheque. The accused No.2 has signed the subject cheque as the Proprietor of Siddhivinayak Enterprises. The complainant has complied the requirements to establish the prima-facie offence u/sec.138 of the Negotiable Instruments Act as per documents. Hence, issue process against the accused No.2 only u/sec.138 of the Negotiable Instruments Act R/o.11/09/19.

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Issue summons after supplying copies of evidence and documents for the accused."

6. Thus, the learned Magistrate has relied on the

verification statement and the affidavit of evidence. He had

perused the pleadings and averments in the complaint, fresh

verification and the affidavit of evidence. Thereafter he has

considered the averments in the complaint in respect of issuance

of cheque. In this view of the matter, paragraph No.12 of the

aforesaid judgment of the Hon'ble Supreme Court is important,

which reads thus:

"12. Another point that has been brought to our notice relates to the interpretation of Section 202 (2) which stipulates that the Magistrate shall take evidence of the witness on oath in an inquiry conducted under Section 202 (1) for the purpose of issuance of process. Section 145 of the Act provides that the evidence of the complainant may be given by him on affidavit,which shall be read in evidence in any inquiry, trial or other proceeding, notwithstanding anything contained in the Code. Section 145 (2) of the Act enables the court to summon and examine any person giving evidence on affidavit as to the facts contained therein, on an application of the prosecution or the accused. It is contended by the learned Amici Curiae that though there is no specific provision permitting the

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examination of witnesses on affidavit, Section 145 permits the complainant to be examined by way of an affidavit for the purpose of inquiry under Section 202. He suggested that Section 202 (2) should be read along with Section 145 and in respect of complaints under Section 138, the examination of witnesses also should be permitted on affidavit. Only in exceptional cases, the Magistrate may examine the witnesses personally. Section 145 of the Act is an exception to Section 202 in respect of examination of the complainant by way of an affidavit. There is no specific provision in relation to examination of the witnesses also on affidavit in Section 145. It becomes clear that Section 145 had been inserted in the Act, with effect from the year 2003, with the laudable object of speeding up trials in complaints filed under Section 138. If the evidence of the complainant may be given by him on affidavit, there is no reason for insisting on the evidence of the witnesses to be taken on oath. On a holistic reading of Section 145 along with Section 202, we hold that Section 202 (2) of the Code is inapplicable to complaints under Section 138 in respect of examination of witnesses on oath. The evidence of witnesses on behalf of the complainant shall be permitted on affidavit. If the Magistrate holds an inquiry himself, it is not compulsory that he should examine witnesses. In suitable cases, the Magistrate can examine documents for satisfaction as to the sufficiency of grounds for proceeding under Section 202."

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These observations were made in respect of the inquiry

U/s.202 of the Cr.P.C. where the complaint was U/s.138 of the

Negotiable Instruments Act.

7. The impugned order passed by the learned Magistrate

completely satisfies the requirement and guidelines laid down by

the Hon'ble Supreme Court in paragraph No.12 in the said

judgment. For this reason, the observations made in the

judgment of Oneup Entertainment Pvt. Ltd. (supra) will not help

the petitioner in the present petition. The learned Magistrate, in

the present case has examined the documents viz. the

verification statement, the affidavit of evidence, pleadings and

averments in the complaint, averments regarding issuance of the

cheque for reaching his satisfaction to proceed further. The

impugned order shows that the learned Magistrate has followed

the procedure as referred to in the above judgment of the