Case Note & Summary
The petitioners, ASR Systems Private Ltd. and its Managing Director Rohit Wadhwa, were original accused in two complaints filed by Kimberly Clark Hygiene Products Pvt. Ltd. under Section 138 of the Negotiable Instruments Act, 1881. The complainant alleged that the accused, as distributors, incurred a debt for goods supplied and issued cheques as security, which were dishonoured due to insufficient funds. Statutory notices were sent from Pune, and upon non-payment, complaints were filed before the Judicial Magistrate First Class, Pune. The Magistrate recorded the verification statement of the complainant's authorised representative, Prashant Ambedas Dhal, and issued process against both accused. The accused, residing in New Delhi, challenged the issuance of process by filing criminal writ petitions under Article 227 of the Constitution. The main legal issue was whether the Magistrate could issue process without holding an enquiry under Section 202 of the Code of Criminal Procedure, 1973, given that the accused were outside the Magistrate's jurisdiction. The petitioners argued that Section 202 Cr.P.C. mandates an enquiry before issuing process when the accused resides outside the local limits of the Magistrate's jurisdiction, and the mere recording of a verification statement does not satisfy this requirement. The respondent-complainant contended that the verification statement itself constituted an enquiry. The court analysed Section 202 Cr.P.C. and held that the provision is mandatory and requires the Magistrate to hold an enquiry, which may include examination of witnesses or further investigation, before issuing process. The verification statement of the complainant's representative is not an enquiry under Section 202. The court distinguished the facts from cases where the accused resides within jurisdiction. Consequently, the court quashed the process issued in both criminal cases, allowing the petitions. The court did not express any opinion on the merits of the complaints, leaving it open for the complainant to take appropriate steps in accordance with law.
Headnote
A) Criminal Procedure Code - Section 202 Cr.P.C. - Mandatory Enquiry - Issuance of Process - Where the accused resides outside the territorial jurisdiction of the Magistrate taking cognizance, the Magistrate must hold an enquiry under Section 202 Cr.P.C. before issuing process - The verification statement of the complainant's representative does not constitute an enquiry under Section 202 - Held that the process issued without such enquiry is illegal and liable to be quashed (Paras 4-6).
Issue of Consideration
Whether the Magistrate could issue process against the accused without holding an enquiry under Section 202 of the Code of Criminal Procedure, 1973 when the accused were residing outside the local jurisdiction of the Magistrate?
Final Decision
The court allowed both criminal writ petitions and quashed the process issued in Criminal Case No. STC 0424164/2009 and Criminal Case No. STC 0424166/2009 pending before the Judicial Magistrate First Class, Pune. The court did not express any opinion on the merits of the complaints and left it open for the complainant to take appropriate steps in accordance with law.
Law Points
- Section 202 Cr.P.C. mandatory enquiry before issuing process when accused resides outside jurisdiction
- Section 138 Negotiable Instruments Act
- 1881
- cognizance of offence
- issuance of process
- verification statement not sufficient enquiry
