Orissa High Court
Laxmikanta Sahu vs Santosh Kumar Muni .... Opposite Party on 20 February, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No. 2058 of 2024
Laxmikanta Sahu .... Petitioner
Mr. M. Acharya, Advocate
-versus-
Santosh Kumar Muni .... Opposite Party
Mr. B. Pujari, Advocate
CORAM: JUSTICE SIBO SANKAR MISHRA
ORDER
Order No. 20.02.2025
04. 1. Heard.
2. The petitioner is aggrieved by the order dated
29.06.2023 passed by the learned S.D.J.M.,
Berhampur in 1CC Case No.217 of 2023 initiated by
the opposite party on the alleged commission of
offence punishable under Section 138 of N.I.Act.
3. Learned counsel for the petitioner has
challenged the order precisely on the ground that the
procedure contemplated under Section 202 Cr.P.C. has
not been complied by the court below while taking
cognizance of the offence. He has relied upon the
judgment of this Court passed in CRLMC No. 2138 of
2024 dated 23.12.2024. He has drawn my attention to
paragraphs-5 and 8 of the judgment, which reads as
under:-
"5. Mr. Acharya, learned counsel for the petitioners
submitted that the procedure adopted by the learned Court
below by taking cognizance of the offence under Section 138
of the N.I. Act is contrary to establish the procedure
recognized under law. He has relied upon the judgment of
the Hon'ble Supreme Court in the case of K.S. Joseph vs.
Philips Carbon Black Ltd. & Anr., reported in (2016) 64 OCR
(SC) 361 to substantiate his submissions. He has
emphasized paragraphs-6 & 7 of the said judgment, which
reads as under:-
"6. On the basis of Order Sheet of the Court of
Magistrate it has been shown that initially
summons were ordered to be issued to the accused
on 05.12.2006 after recording a single sentence that
the complainant was represent. Since proper steps
were not taken summons appear to have been re-
issued at the correct address on 22.10.2011. The
orders of the Magistrate do not show any
application of mind to the issue of delay nor has
delay been condoned before issuance of summons.
The Order Sheet does not show any application of
mind to the fact that the accused was shown to be
residing at a place beyond his jurisdiction and
therefore an enquiry or investigation may be
required on account of amendment in Section 202 of
the Cr.P.C. inserted by the Act 25 of 2005, effective
from 23.06.2006. The relevant part of Section 202 is
reproduced hereinbelow:-
"202. Postponement of issue of process- (1)
Any Magistrate, on receipt of a complaint
of an offence of which he is authorized to
take cognizance or which has been made
over to him under Section 192, may, if he
thinks fit, and shall, in a case where the
accused is residing at a place beyond the
area in which he exercises his jurisdiction
postpone the issue of process against the
accused, and either inquire into the case
himself or direct an investigation to be
made by a police officer or by such other
person as he thinks fit, for the purpose of
deciding whether or not "there is sufficient
ground for proceeding:
Provided .............. " (Emphasis supplied)
7. The amendment has a purpose in requiring the
concerned Magistrate to postpone the issue of
process against the accused if he is residing at a
place beyond the area of his jurisdiction and to hold
an enquiry or direct an investigation by a police
officer or any other person for the purpose of
deciding whether or not there is sufficient ground
for proceeding. It is to avoid unnecessary
harassment to the proposed accused. In such an
enquiry, the Magistrate may take evidence of
witness on oath but in view of Section 145 of the
Act, complainant's evidence on affidavit will also be
permissible for the purpose of such enquiry."
8. I have carefully gone through the documents placed on
record and perused the impugned order dated 10.08.2023 in
the light of the judgments cited by the parties at the Bar. I
have no reason to disagree with the contention raised by the
petitioners through Mr. Acharya, learned counsel. It appears
from the impugned order that the trial Court has not resorted
to the procedure contemplated under Section 202 Cr.P.C. and
by dispensing with the recording of the presummoning
evidence proceeded to take cognizance of the offence under
Section 138 of the N.I. Act on the basis of the documents form
part of the complaint. Therefore, the impugned order is not
sustainable. Accordingly the impugned order dated
10.08.2023 passed by the learned S.D.J.M., Berhampur in
1.C.C. Case No.329 of 2023 is set aside and the matter is
remitted back to the learned trial Court for affording
opportunity to the complainant to record the
presummoning/initial statement under Section 202 Cr.P.C.
before issuance of summons to the petitioners. Thereafter,
the learned trial Court shall proceed with the complaint in
accordance with law."
4. Mr. Pujari, learned counsel for the opposite
party vehemently opposed the prayer made by the
petitioner on the ground that indeed the present
petition is not maintainable and the petitioner ought to
have preferred a revision against the impugned order.
5. I have considered the rival contentions of both
the parties and of the opinion that on the ground of
technicality even if the petitioner is relegated to the
revisional jurisdiction to challenge the impugned order,
the only fall back would be to delay the proceeding
initiated by the opposite party under Section 138 of N.I.
Act against the petitioner.
6. Section 143 (2) of N.I. Act mandate that the
cases of present nature needs to be disposed of as
expeditiously as possible within a period of six months.
Keeping in view the mandate of law, I am of the
considered view that the technical objection raised by
the opposite party needs to be cured at any stage, for
that the proceeding shall not delayed. Hence, I allow
the petition and set aside the order dated 29.06.2023
passed by the learned S.D.J.M., Berhampur in 1CC
Case No.217 of 2023 and remit back the matter to the
learned trial court for affording opportunity to the
complainant to record the pre-summoning/initial
statement under Section 202 Cr.P.C. and the trial court
shall proceed in accordance with law thereafter.
7. In view of the mandatory provision under
Section 143 (2) Cr.P.C., I am inclined to direct the trial
court to do well to see that the proceeding is disposed
of as expeditiously as possible, preferably within a
period of three month hence.
8. With the aforesaid observation, the CRLMC is
disposed of.
(S.S. Mishra)
Judge
Ashok
Signed by: ASHOK KUMAR JAGADEB
Location: High Court of Orissa
Date: 20-Feb-2025 18:54:12
