Whether it is necessary to make enquiry U/S 202 of crpc in case of dishonour of cheque?
(supra) and the Full Bench of this court in Rajesh Chalke (supra) makes it
clear that in the complaints under section 138 NI Act, the Magistrate is not
obliged to examine the complainant under section 200 Cr.PC and can rely
on affidavit filed along with the complaint. The Magistrate can take
cognizance and issue summons if upon scrutinizing the complaint, the
affidavit and the documents he is satisfied that prima facie offence has been
made out against the accused.
40. It is also pertinent to note that the Negotiable Instruments
(Amendment) Act, 2015 defines and restricts the territorial jurisdiction to a
court specified in Section 142 (2) (a) and (b) of the Act. The said issue of
territorial jurisdiction which has to be decided on the basis of the
documents, eliminates the need for further inquiry on jurisdictional issue.
It therefore follows that the Magistrate can arrive at the requisite
satisfaction about the essential ingredients of the offence including the
issue of territorial jurisdiction at the end of the enquiry under Section 200
Cr.P.C itself and this obviates the need of holding further enquiry under
Section 202 Cr.P.C. This being the position further enquiry under sub
section (1) of Section 202 of the Code, if held to be mandatory in
complaints filed under Section 138 N.I.Act, will be nothing but ritualistic,
idle and an empty formality.
41. It may be mentioned that the decision of the full bench of this court in
Rajesh Chalke (supra_ was not brought to the notice of the learned Single
Judge in Netcore (Cri. Writ Petition No. 138 of 2011). Similarly, the
decision of the Apex Court in M/s. Indian Bank Associates (supra) as well
as the decision of the full bench of this court in Rajesh Chalke were not
brought to the notice of the learned single judge in Vimal Powerloom
(supra). Consequently, the learned Single Judges of this Court had no
occasion to consider the principles laid down by the Apex Court as well as
the full bench of this Court in the aforesaid decisions. These two decisions
therefore cannot be considered as binding precedents. In any case, upon
consideration of the decision in Indian Banks Association (supra) and
Rajesh Chalke (supra) it would be appropriate to follow the decision in
Bansilal Kabra (supra), and Vinod vs. SBI Global (supra).
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 716 OF 2015
with
CRIMINAL APPLICATION NO. 717 OF 2015
with
CRIMINAL APPLICATION NO. 718 OF 2015
Dr. (Mrs) Rajul Ketan Raj ..Petitioner
v/s.
Reliance Capital Ltd. & Anr. ..Respondents
CORAM : SMT. ANUJA PRABHUDESSAI, J.
PRONOUNCED ON : 12th FEBRUARY, 2016.
Citation;2016 ALLMR(CRI)1224
https://www.lawweb.in/2016/04/whether-it-is-necessary-to-make-enquiry.html
