Madras High Court
Karthiga vs R.Mariappan (Died) on 28 February, 2025
Crl.R.C.(MD)No.1124 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 12.02.2025
Pronounced on : 28.02.2025
CORAM:
THE HON'BLE MR.JUSTICE K.MURALI SHANKAR
Crl.R.C.(MD)No.1124 of 2024
and
Crl.M.P.(MD)No.12053 of 2024
Karthiga ... Petitioner
Vs.
R.Mariappan (Died)
amended in Cr.M.P.No.24577 of 2022 dated 27.09.2022
M.Sheela ... Respondent
Prayer : This Criminal Revision Petition filed under Sections 397 r/w 401
Cr.P.C., to call for the records pertaining to the impugned order of
cognizance in C.C.No.1009 of 2022 pending on the file of the learned
Judicial Magistrate No.I, Trichy dated 27.09.2022 and set aside the same.
For Petitioner : Mr.G.Karuppasamy Pandiyan
For Respondent : Mr.B.Jameel Arasu
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Crl.R.C.(MD)No.1124 of 2024
ORDER
The Criminal Revision is directed against the order dated
27.09.2022 taking cognizance in C.C.No.1009 of 2022 for the offence
under Section 138 of Negotiable Instruments Act.
2. It is evident from the records that the deceased respondent/
complainant has filed a private complaint under Section 200 Cr.P.C.
against the petitioner/accused for the offences under Sections 138 r/w 142
of Negotiable Instruments Act and the learned Magistrate has passed the
impugned order taking cognizance of the case. After filing of the
complaint, since the complainant died, his wife got herself impleaded as
complainant and proceeded with the same.
3. The case of the complainant is that the petitioner, in order to meet
out her urgent family expenses, borrowed a sum of Rs.25,00,000/- on
24.11.2021 and executed a promissory note in favour of the complainant
on the same day itself agreeing to repay the same within six months with
interest at 12% per annum on demand, that the petitioner has not repaid
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Crl.R.C.(MD)No.1124 of 2024
any amount to the complainant despite repeated requests and lastly, after
the complainant’s frequent efforts, the petitioner issued a cheque for sum
of Rs.25,00,000/- drawn on Indian Overseas Bank, Palayam Branch,
Dindigul, that when the cheque was presented for collection through the
complainant’s banker Indian Overseas Bank, Trichy Main Branch, the
same came to be returned on the ground that no amount was available in
the Bank account, that the complainant has then sent a legal notice dated
31.05.2022 demanding the payment of cheque amount, that the petitioner
having received the notice on 07.06.2022 failed to make payment within
15 days of the receipt thereof and that therefore, the complainant was
constrained to lodge the private complaint.
4. The learned counsel appearing for the petitioner would mainly
contend that since the petitioner is residing beyond the territorial
jurisdiction of the Court which took cognizance of the case, the learned
Magistrate ought to have postponed of issue of process and conducted
enquiry under Section 202 Cr.P.C., that the learned Magistrate must have
conducted enquiry under Section 202 Cr.P.C. before taking cognizance
and sending process against the petitioner, that enquiry under Section 202
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Crl.R.C.(MD)No.1124 of 2024
Cr.P.C. before taking cognizance is mandatory and that the learned
Magistrate, without conducting any enquiry under Section 202 Cr.P.C., has
mechanically taken cognizance of the case and issued the process and
hence, proceedings of the learned Magistrate suffers from the vice of non-
application of mind in law.
5. The learned counsel appearing for the petitioner would rely on
the judgment of the Constitution of the Hon’ble Supreme Court in In Re:
Expeditious Trial of Cases under Section 138 of N.I. Act 1881 reported
in 2021 SCC OnLine SC 325 and the decision of the Hon’ble Supreme
Court in Sunil Todi and Others Vs. State of Gujarat and Another
reported in (2022) 16 SCC 762.
6. The learned counsel appearing for the petitioner would rely on
the conclusions arrived at by the Constitution Bench in Serial Nos.2 and 3,
which are extracted hereunder:-
“24. …
2) Inquiry shall be conducted on receipt of
complaints under Section 138 of the Act to arrive at
sufficient grounds to proceed against the accused, when4/12
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Crl.R.C.(MD)No.1124 of 2024such accused resides beyond the territorial jurisdiction of
the court.
3) For the conduct of inquiry under Section 202 of
the Code, evidence of witnesses on behalf of the
complainant shall be permitted to be taken on affidavit. In
suitable cases, the Magistrate can restrict the inquiry to
examination of documents without insisting for
examination of witnesses.”
7. In Sunil Todi‘s case, the Hon’ble Supreme Court, by referring to
the decision of the Constitution Bench, has observed,
“38. Section 145 of the NI Act provides that
evidence of the complainant may be given by him on
affidavit, which shall be read in evidence in an inquiry,
trial or other proceeding notwithstanding anything
contained in the CrPC. The Constitution Bench held that
Section 145 has been inserted in the Act, with effect from
2003 with the laudable object of speeding up trials in
complaints filed under Section 138. Hence, the Court
noted that 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.
Consequently, it was held that Section 202(2) CrPC is
inapplicable to complaints under Section 138 in respect of
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Crl.R.C.(MD)No.1124 of 2024
the examination of witnesses on oath. The Court held that
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 and in suitable cases the Magistrate
can examine documents to be satisfied that there are
sufficient grounds for proceeding under Section 202.”
8. In the case on hand, admittedly, the petitioner is residing at
Dindigul District and the complaint under Section 138 of Negotiable
Instruments Act came to be filed before the Magistrate Court at Trichy and
the case was taken cognizance.
9. Section 202(1) Cr.P.C. deals with postponement of issue of
process which contemplates that any Magistrate, on receipt of a complaint
of an offence of which he is authorised to take cognizance and in a case
where the accused is residing at a place beyond the area in which he
exercises his jurisdiction, shall 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 for the purpose of deciding whether or not
there is sufficient ground for proceeding.
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Crl.R.C.(MD)No.1124 of 2024
10. It is pertinent to mention that the words ‘and shall, in a case
where the accused is residing at a place beyond the area in which he
exercises his jurisdiction’ came to be inserted by Section 19 of the Code of
Criminal Procedure (Amendment) Act (Central Act 25 of 2005).
11. The Hon’ble Supreme Court in Vijay Dhanuka and others Vs.
Najima Mamtaj and others reported in (2014) 14 SCC 638 has
categorically held that enquiry by the Magistrate before taking cognizance
is mandatory.
12. The learned counsel appearing for the petitioner, by relying the
above legal position, would contend that the learned Magistrate has
nowhere whispered that enquiry under Section 202 Cr.P.C. was conducted
and that since enquiry under Section 202 Cr.P.C. is mandatory, the non-
compliance would vitiate the order taking cognizance.
13. No doubt, as rightly pointed out by the learned counsel
appearing for the petitioner, in the impugned order taking cognizance
there is no reference to any enquiry under Section 202 Cr.P.C., but the
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Crl.R.C.(MD)No.1124 of 2024
petitioner has not produced the B-Diary extract to show what had
happened before taking cognizance.
14. As rightly contended by the learned counsel appearing for the
respondent, the learned Magistrate, in the impugned order itself, has
recorded his satisfaction about the existence of prima facie case against
the petitioner for the offence under Section 138 of Negotiable Instruments
Act.
15. No doubt, the learned Magistrate is duty bound to apply his
mind to the allegations in the complaint together with the statements
which are recorded in the enquiry while determining whether there is a
prima facie case sufficient ground for proceeding. To put it in other way,
there must be an application of mind by the Magistrate to whether the
allegations in the complaint together with the statements recorded or the
enquiry conducted constitute an offence.
16. At this juncture, it is necessary to refer the conclusions of the
Constitution Bench of the Hon’ble Supreme Court in Serial No.3, wherein,
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Crl.R.C.(MD)No.1124 of 2024
it has been held that the Magistrate in suitable cases can restrict the
inquiry to examination of documents without insisting for examination of
witnesses. Moreover, it has also been stated that in inquiry under Section
202 Cr.P.C., evidence of witnesses on behalf of the complainant shall be
permitted to be taken on affidavit.
17. In the case on hand, it is evident from the records that the
complainant has filed his proof affidavit and the learned Magistrate has
received the proof affidavit and marked the documents under Ex.P1 to
Ex.P5 and after perusing the entire case records and the documents, has
recorded his satisfaction that prima facie offence under Section 138 of
Negotiable Instruments Act was made out against the petitioner.
18. It is necessary to refer the impugned order hereunder for better
appreciation:-
“Complainant present. As per the dictum laid down
in Indian Bank Association case {2014 (2) SCC (Cri) 652}
in Para.18 and as directed in the latest dictum in In Re
expeditious trial cases under Section 138 Act in AIR 2021
SC 1957, the complainant had let in his pre cognizance
evidence in the form of proof affidavit and had marked the9/12
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Crl.R.C.(MD)No.1124 of 2024documents. The proof affidavit was received an the
exhibits Ex.P1 to P5 were marked. On the perusal of the
entire case records and the exhibits, the prima facie
offence under sec.138 of the Negotiable Instruments Act
was made out against the arrayed accused as the
ingredients under sec.138(a), (b), (c) were satisfied on
record. Hence, this court takes cognizance of the offence
against the arrayed accused for the offence under sec.138
N.I.Act to be tried as per Summary Trial procedure as
mandated under Sec.143 N.I Act. Issue summons to the
accused through R.P.A.D and the complainant is directed
to take process to get the summons served along with the
copy of the complaint. Call on 29.11.2022.”
19. Though the learned Magistrate has not specifically stated that
enquiry under Section 202 Cr.P.C. was conducted, it is evident that he
conducted enquiry, wherein, he received the proof affidavit of the
complainant and marked the documents produced by the complainant and
on considering the entire records, has proceeded to take cognizance. Just
because the words “enquiry under Section 202 Cr.P.C.” is not mentioned
anywhere, that by itself is not sufficient to hold that the entire proceedings
stand vitiated, more particularly, when the learned Magistrate, after
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Crl.R.C.(MD)No.1124 of 2024
considering the entire materials available on records, has recorded his
satisfaction that there existed prima facie case to proceed against the
petitioner. Except the above, the petitioner has not canvassed any other
valid reason or ground to impugn the order taking cognizance.
20. Considering the above, this Court concludes that the impugned
order taking cognizance cannot be found fault with. Consequently, this
Court concludes that the revision is devoid of merit and the same is liable
to be dismissed.
21. In the result, this Criminal Revision Petition is dismissed.
Consequently, connected Miscellaneous Petition is closed. No costs.
28.02.2025
NCC :yes/No
Index :yes/No
Internet:yes/No
csm
To
1. The Judicial Magistrate No.I,
Tiruchirappalli.
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Crl.R.C.(MD)No.1124 of 2024
K.MURALI SHANKAR,J.
csm
Pre-Delivery Order made in
Crl.R.C.(MD)No.1124 of 2024
and
Crl.M.P.(MD)No.12053 of 2024
Dated : 28.02.2025
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