Madhya Pradesh High Court
M/S Alfa Vision Oversease India ... vs M/S Anjana Construciton ... on 1 April, 2022
Author: Rajendra Kumar (Verma)
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR (VERMA)
ON THE 1st OF APRIL, 2022
MISC. CRIMINAL CASE No. 44380 of 2021
Between:-
M/S ALFAVISION OVERSEASE INDIA LTD. THR. ITS
DIRECTOR SHRI VISHNU GOYAL S/O SHRI G.L.
GOYAL ADDRESS 405, RAJANI BHAWAN M.G.
ROAD INDORE (MADHYA PRADESH)
.....PETITIONER
(BY MS.KRITI SONI, ADVOCATE)
AND
1. M/S ANJANA CONSTRUCITON PARTNERSHIP
FIRM THROUGH ITS PARTNERS
SHRI UDAYLAL S/O BHERULAL ANJANA
2. MANOHARLAL S/O BHERULAL ANJANA
BOTH R/O VILLAGE-KESUNDA TEH. CHHOTI
SANDARI RAJASTHAN AND
AND
ANJANA COMPLEX, TAGORE MARG NEEMUCH
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI PIYUSH JAIN, ADVOCATE )
Th is application coming on for orders this day, the court passed the
following:
ORDER
The petitioner who is accused in complaint case filed under Section 138 of
the Negotiable Instruments Act (hereinafter referred to as 'Act') by the respondents
has invoked inherent powers of this Court to quash the order dated
04.08.2021(Annexure P-6) passed in Cr.Rev.No.3/2020 by the learned IV
Additional District and Sessions Judge, Neemuch and order dated 10.12.2019
(Annexure P-5) passed in Cr.Case No.224/2011 by the learned Judicial Magistrate
First Class, Neemuch and to allow application under Section 202(1) of the Code of
Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') filed by the
petitioner and to direct make enquiry under Section 202(1) of Cr.P.C.
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SAN REENA JOSEPH
Date: 2022.04.07
The respondents filed a complaint under Section 138 of the Act against the
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petitioner in the Court of Judicial Magistrate First Class on 26.02.2011. The
Managing Director Vishnu Goyal appeared for the first time on 16.05.2012. On
15.10.2019, the respondent filed an application under Section 202(1) of Cr.P.C.
before the trial Court and reply was filed on 17.10.2019 by the
respondent/complainant. It is submitted that while pressing the application under
Section 202(1) of Cr.P.C.the petitioner has relied on the judgments reported in
(2013) 2 SCC 488 National Bank of Oman Vs. Barkara Abdul Aziz and
others, (2013) 2 SCC 435 Uday Shankar Awasthi Vs. State of U.P. And
others and (2017) 3 SCC 528 Abhijit Pawar Vs.Hemant Madhukar and
others.
The said application was rejected by the learned trial Court vide impugned
order dated 10.12.2019. This order was challenged in Cr.Rev.No.03/2020 before
the Court of IV Additional Sessions Judge, Neemuch and the said revision was
also rejected vide order dated 04.08.2021 on the ground that the impugned order
being interlocutary and not amenable to revisional jurisdiction.
Learned counsel for the petitioner submits that from the bare perusal of the
complaint it is clear that the registered office of the accused company as well as
the residence of the Managing Director of the accused Company are outside the
territorial jurisdiction of the learned trial Court. The learned trial Court as well as
the learned revisional Court has failed to consider the fact that the complaint was
admitted on the date of its filing. Both the Courts have failed to consider that the
complaint was admitted without securing compliance of Section 202(1) of Cr.P.C.
The application under Section 202(1) of Cr.P.C.has been rejected without
assigning any reason. Both the Courts below failed to consider that the issue raised
by the petitioner is a pure question of law and can be raised at any stage. The
provisions of Section 202(1) of Cr.P.C.is mandatory in nature and therefore the
learned trial Court was duty bound to secure compliance thereof before issuing
process against the accused. The revisional Court has erred in rejecting the criminal
revision by holding that the impugned order dated 10.12.2019 passed by the
learned trial Court is an interlocutary order and therefore the revision is not
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maintainable.
SAN REENA JOSEPH
Date: 2022.04.07
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Learned counsel for the petitioner relying on the judgment of Hon'ble
Supreme Court in the case of Sunil Todi and others Vs. State of Gujarat and
another reported in 2021 SCC OnLine SC 1002 and Birla Corporation Ltd.
Vs. Adventz Investments and Holdings reported in (2019) 16 SCC 610
submits that enquiry under Section 202(1) of Cr.P.C.is mandatory. The trial Court
cannot act as mere post office. The petitioner/accused is residing at a place
beyond the jurisdiction of the trial Court, therefore, it is mandatory to comply
Section 202(1) of Cr.P.C.
Learned counsel for the respondent submits that cases under the Act is
governed by this Act and there is no need of evidence to be recorded before the
Court. As per Section 145 of the Act the evidence of the complainant may be
given by him on affidavit. Relying on the judgment of the Hon'ble Supreme Court
in the case of Shivjee Singh Vs. Nagendra Tiwary and others reported in
(2010) 7 SCC 578 submits that it is not mandatory for the complainant to
examine all the witnesses named in the complaint or whose name are disclosed
before the trial Court at the time of filing of the complaint. In the aforesaid
judgment it has been held as under:-
"22. The use of the word `shall' in proviso to Section 202(2)
is prima facie indicative of mandatory character of the
provision contained therein, but a close and critical analysis
thereof along with other provisions contained in Chapter XV
and Sections 226 and 227 and Section 465 would clearly show
that non examination on oath of any or some of the witnesses
cited by the complainant is, by itself, not sufficient to denude
the concerned Magistrate of the jurisdiction to pass an order
for taking cognizance and issue of process provided he is
satisfied that prima facie case is made out for doing so. Here it
is significant to note that the word `all' appearing in proviso to
Section 202(2) is qualified by the word `his'. This implies that
the complainant is not bound to examine all the witnesses
named in the complaint or whose names are disclosed in
response to the order passed by the Magistrate. In other
words, only those witnesses are required to be examined
whom the complainant considers material to make out a prima
facie case for issue of process.
23. The choice being of the complainant, he may choose not
to examine other witnesses. Consequence of such non-
examination is to be considered at the trial and not at the stage
of issuing process when the Magistrate is not required to enter
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into detailed discussions on the merits or demerits of the case,
that is to say whether or not the allegations contained in the
SAN REENA JOSEPH
Date: 2022.04.07
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complaint, if proved, would ultimately end in conviction of the
accused. He is only to see whether there exists sufficient
ground for proceeding against the accused.
30. Although, Shah, J. and Thomas, J. appear to have
expressed divergent views on the interpretation of proviso to
Section 202(2) but there is no discord between them that non
examination of all the witnesses by the complainant would not
vitiate the proceedings. With a view to clarify legal position on
the subject, we deem it proper to observe that even though in
terms of the proviso to Section 202(2), the Magistrate is
required to direct the complainant to produce all his witnesses
and examine them on oath, failure or inability of the
complainant or omission on his part to examine one or some
of the witnesses cited in the complaint or whose names are
furnished in compliance of the direction issued by the
Magistrate, will not preclude the latter from taking cognizance
and issuing process or passing committal order if he is
satisfied that there exists sufficient ground for doing so. Such
an order passed by the Magistrate cannot be nullified only on
the ground of non-compliance of proviso to Section 202(2)."
I have heard the learned counsel for the parties and have gone through the
record of the case.
The complaint before the learned trial Court is pending since 26.02.2011 and
after a lapse of eight years this application was filed. The petitioner has not
challenged the order of summoning at the first instance, but at the stage of cross
examination is seeking to held up the trial. If the application under Section 202(1)
of Cr.P.C.was allowed, the result would be only an enquiry after summoning the
which dates back to the year 2011 which means to move anticlockwise in respect
of proceedings which are almost at the threshold of finale and not termination of
proceedings. It is settled law that the proceedings under Section 138 of the Act
are on summary nature. It also reveals from the order of the revisional Court that in
more than 10 years old case, the petitioner by moving various applications is trying
to delay the trial and it is rightly observed by the revisional Court that enquiry
proceedings have culminated into protracted trial. The petitioner has continued to
take part in proceedings since then, but at the stage of cross examination had
moved application under Section 202(1) of Cr.P.C.in 2019.
It is well settled that the power under section 482 Cr.P.C has to be exercised
by the High Court, inter alia, to prevent abuse of the process of any court or
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SAN REENA JOSEPH
Date: 2022.04.07
16:50:02 IST
otherwise to secure the ends of justice. Though the powers possessed by the High
Court under Section 482 of Cr.P.C. are very wide but the very plenitude of the
power requires great caution in its exercise. The inherent power can not be
exercised to stifle a legitimate prosecution. Such powers have to be exercised only
to give effect to any order under Cr.P.C. to prevent abuse of the process of any
court and to secure the ends of justice.
In view of the above discussions, both the Courts have not committed any
jurisdictional error, perversity or procedural irregularity, therefore, I am of the
considered view that it is not a fit case to quash the orders passed by the Courts
below. No interference is called for invoking inherent powers under Section 482 of
Cr.P.C. Accordingly, the petition being devoid of merit and substance, deserves to
be dismissed and is hereby dismissed.
(RAJENDRA KUMAR (VERMA))
JUDGE
RJ
Signature Not Verified
VerifiedDigitally
Digitally signed by
SAN REENA JOSEPH
Date: 2022.04.07
16:50:02 IST
