Case Note & Summary
The petitioner, Kunal Rajesh Kothari, filed a criminal writ petition challenging the order dated 19th January 2016 passed by the Judicial Magistrate, First Class, Solapur, issuing process against him for an offence under Section 138 of the Negotiable Instruments Act, 1881. The complainant, Viral Suresh Desai, alleged that the petitioner issued two cheques dated 8th July 2015 for Rs.55,00,000 and Rs.5,25,000, which were deposited on 29th July 2015 but dishonoured. After a demand notice, the amount was not paid, leading to a complaint on 9th October 2015. The Magistrate took cognizance and issued process. The sole ground raised by the petitioner was that the Magistrate failed to conduct an inquiry under Section 202 of the Code of Criminal Procedure, 1973, which is mandatory when the accused resides outside the court's jurisdiction. The petitioner resides in Mumbai, while the complaint was filed in Solapur. The court examined the Roznama and found no evidence of any inquiry under Section 202 CrPC. The court held that the inquiry under Section 202 CrPC is mandatory before issuing process when the accused resides outside the jurisdiction. Since no such inquiry was conducted, the order issuing process was illegal and liable to be quashed. The court allowed the petition, quashed the process order, and remanded the matter to the Magistrate for fresh consideration after conducting an inquiry under Section 202 CrPC.
Headnote
A) Criminal Procedure Code - Section 202 Inquiry - Mandatory Inquiry Before Issuance of Process - Section 202 CrPC, 1973 - Where the accused resides outside the territorial jurisdiction of the Magistrate, an inquiry under Section 202 CrPC is mandatory before issuing process. The Magistrate failed to conduct any such inquiry, rendering the process order illegal. (Paras 4-6) B) Negotiable Instruments Act - Dishonour of Cheque - Issuance of Process - Section 138 NI Act, 1881 - The complaint under Section 138 of the Negotiable Instruments Act was filed at Solapur, while the accused resides in Mumbai. The Magistrate issued process without holding an inquiry under Section 202 CrPC. Held that the order issuing process is quashed and set aside. (Paras 2-6)
Issue of Consideration
Whether the Magistrate can issue process under Section 138 of the Negotiable Instruments Act, 1881 without conducting an inquiry under Section 202 of the Code of Criminal Procedure, 1973 when the accused resides outside the territorial jurisdiction of the court.
Final Decision
The petition is allowed. The order dated 19th January 2016 issuing process against the petitioner is quashed and set aside. The matter is remanded to the trial court for fresh consideration after conducting an inquiry under Section 202 of the Code of Criminal Procedure, 1973.
Law Points
- Section 202 CrPC mandatory inquiry
- accused residing outside jurisdiction
- cognizance without inquiry invalid
- Negotiable Instruments Act Section 138
