CRM No.M-32045 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-1.11.2010 M/s Bharat Trading Company and others ...Petitioners Versus State of Haryana and another ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Sumeet Goel, Advocate for the petitioners. M ehinder S ingh S ullar , J . (Oral) The compendium of the facts, which need a necessary mention, for deciding the core controversy involved in the instant petition and emanating from the record, is that M/s Somany Ceramics Limited complainant-respondent No.2 (for short “the complainant-company”) filed a criminal complaint (Annexure P1) against the petitioners-accused for the commission of offences punishable under sections 138, 141 and 142 of the Negotiable Instruments Act (hereinafter to be referred as “the Act”), inter-alia, pleading that petitioner- accused No.1, through its partners accused Nos.2 and 3, on the basis of the authority vested in them, approached the complainant-company and purchased the goods on various occasions. But they did not make the payment of the price of the goods. On 13.9.2008, a sum of Rs.14,32,305/- was found to be due, which they were legally bound to pay to complainant-company. They issued cheque bearing No.178614 dated 13.9.2008 to discharge their legal liability of the indicated amount. The complainant-company claimed that on 16.9.2008, it deposited the cheque in its account for encashment with the Punjab National Bank, Railway Road, CRM No.M-32045 of 2010 (O&M) 2 Bahadurgarh Branch. But ultimately, the cheque was dishonoured by the bank on 26.9.2008. When confronted in this respect, then the accused requested the complainant-company to again present the cheque and assured that the same shall be honoured. As such no notice was issued by the complainant-company against the first dishonour of the cheque. As per request made by the petitioners-accused, the complainant-company again presented the cheque on 9.12.2008 in its account for encashment with the indicated Punjab National Bank, but the same was again dishonoured with the remarks “Account Closed”. Thereupon the Punjab National Bank intimated the complainant-company about the re-dishonour of the cheque, vide intimation letter dated 30.12.2008. Thereafter, the complainant-company served a legal notice of demand dated 3.1.2009, but the accused did not make the payment of the aforesaid amount despite service of legal notice in this relevant connection. 2. Levelling a variety of allegations and narrating the sequence of events, in all, according to the complainant-company that since the cheque issued by the accused was dishonoured and they (petitioners-accused) did not make the payment despite legal notice, so, the complainant-company filed the complaint (Annexure P1) against them, in the manner described here-in-above. 3. The trial Court recorded the preliminary oral as well as documentary evidence. After taking into consideration the material on record, the trial Magistrate summoned the petitioners-accused to face the trial under section 138 of the Act, by virtue of summoning order dated 28.2.2009 (Annexure P2). 4. Instead of submitting to the jurisdiction of the trial Magistrate, the petitioners-accused straightway filed the instant petition for quashing the complaint (Annexure P1) and summoning order (Annexure P2), invoking the provisions of section 482 Cr.PC. That is how I am seized of the matter. 5. Having heard the learned counsel for the petitioners, having gone through the record with his valuable help and after bestowal of thoughts over the CRM No.M-32045 of 2010 (O&M) 3 entire matter, to my mind, there is no merit in the present petition in this context. 6. Ex facie, the argument of the learned counsel that as the trial Magistrate did not hold the enquiry as provided under section 202 Cr.PC, therefore, the summoning order (Annexure P2) is illegal, in view of observations of this Court in cases Smt.Neeta Sinha v. P.S.Raj Steels Private Ltd. 2010 (3) R.C.R. (Criminal) 509 and Prem Kaur @ Premo v. Balwinder Kaur 2009 (2) R.C.R. (Criminal) 4, is not only devoid of merit but misplaced as well. 7. Chapter XV deals with the institution of complaint to the Magistrate. Section 200 of the Code postulates that “a Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate. 8. Sequelly, section 202 of the Code further posits that “any Magistrate, on receipt of a complaint of an offence of which he is authorised 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 that no such direction for investigation shall be made - (a) xxx xxx xxx (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. 9. The intention of the legislature to introduce the amendment of envisaged enquiry is clear, explicit and only for a limited purpose to see that the innocent persons are not harassed by unscrupulous persons by filing false CRM No.M-32045 of 2010 (O&M) 4 complaints against those persons residing at far off places. The amendment made it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction, he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused. Sub-section (2) further provides that in an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath. 10. Likewise, section 203 of the Code escalates that if, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall record his reasons for so doing. Once the complaint is not dismissed under section 203 Cr.PC and if in the opinion of a Magistrate taking cognizance of an offence, there is a sufficient ground for proceeding, then he will summon the accused as contemplated under section 204 Cr.PC. 11. Possibly, no one can dispute with regard to the observations of this Court in Smt.Neeta Sinha and Prem Kaur's cases (supra) that holding an enquiry unde Section 202 (1) Cr.PC is essential before issuing summons, but the same would not come to the rescue of the petitioners in this regard. 12. As is evident from the record that in the instant case, the complainant-company filed the complaint dated 18.2.2009 (Annexure P1) against the petitioners-accused, which was adjourned. The trial Court recorded the preliminary oral and documentary evidence. Having completed all the codal formalities (including the enquiry under section 202 Cr.PC) and on ultimate analysis of preliminary oral as well as documentary evidence on record, the trial Magistrate came to a definite conclusion that there is sufficient material on record to proceed against the petitioners-accused for the commission of offence CRM No.M-32045 of 2010 (O&M) 5 punishable under section 138 of the Act and summoned them, vide summoning order dated 28.2.2009 (Annexure P2), which is in the following manner:- “Arguments on the summoning of the accused heard. In order to discharge the liability, the accused issued a cheque bearing no.178614 dated 13.9.2008 Ex.P4 amounting to Rs.14,32,305/- in favour of the complainant and the said cheque on presentation was dishonoured by the banker of accused on account of “Account Closed” vide memo dated 30.12.2008 Ex.P7. Statutory notices dated 3.1.2009 Ex.P8 to Ex.P12 were got issued by the complainant demanding the payment, but no payment was made by the accused. The above notice sequence of events has been duly deposed by filing affidavit by the complainant. Thus, there is sufficient material on the record to proceed against the accused for the commission of an offence punishable under section 138 of Negotiable Instruments Act, 1881. Let, the accused be summoned to face trial under the above said provision of law for 6.5.2009 on filing of PF, copy etc. within 7 days.” 13. An identical question arose before the Hon'ble Apex Court in case Shivjee Singh v. Nagendra Tiwary & Ors. 2010 (3) Criminal Court Cases 580 (SC), wherein while interpreting the provisions of Chapter XV, it was held as under (paras 11 and 12):- "The scope of enquiry under Section 202 is extremely restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether process should issue or not under Section 204 of the Code or whether the complaint should be dismissed by resorting to Section 203 of the Code on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any. But the enquiry at that stage does not partake the character of a full dress trial which can only take place after process is issued under Section 204 of the Code calling upon the proposed accused to answer the accusation made against him for adjudging the guilt or otherwise of the said accused person. Further, the question whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of the enquiry contemplated under Section 202 of the Code. To say in other words, during the course of the enquiry under Section 202 of the Code, the enquiry officer has to satisfy himself simply on the evidence adduced by the prosecution whether prima facie case has been made out so as to put the proposed accused on a regular trial and that no detailed enquiry is called for during the course of such enquiry." (emphasis supplied) The use of the word `shall' in proviso to Section 202(2) is prima facie CRM No.M-32045 of 2010 (O&M) 6 indicative of mandatory character of the provision contained therein, but a close and critical analysis thereof along with other provisions contained in Chapter XV and Sections 226 and 227 and Section 465 would clearly show that non examination on oath of any or some of the witnesses cited by the complainant is, by itself, not sufficient to denude the concerned Magistrate of the jurisdiction to pass an order for taking cognizance and issue of process provided he is satisfied that prima facie case is made out for doing so. Here it is significant to note that the word `all' appearing in proviso to Section 202(2) is qualified by the word `his'. This implies that the complainant is not bound to examine all the witnesses named in the complaint or whose names are disclosed in response to the order passed by the Magistrate. In other words, only those witnesses are required to be examined whom the complainant considers material to make out a prima facie case for issue of process. The choice being of the complainant, he may choose not to examine other witnesses. Consequence of such non-examination is to be considered at the trial and not at the stage of issuing process when the Magistrate is not required to enter into detailed discussions on the merits or demerits of the case, that is to say whether or not the allegations contained in the complaint, if proved, would ultimately end in conviction of the accused. He is only to see whether there exists sufficient ground for proceeding against the accused.” In this manner, it was ruled as under (para 16):- “As a sequel to the above discussions, we hold that examination of all the witnesses cited in the complaint or whose names are disclosed by the complainant in furtherance of the direction given by the Magistrate in terms of proviso to Section 202(2) is not a condition precedent for taking cognizance and issue of process against the persons named as accused in the complaint and the High Court committed serious error in directing the Chief Judicial Magistrate to conduct further inquiry and pass fresh order in the light of proviso to Section 202(2).” 14. Meaning thereby, in the instant case as the trial Magistrate has substantially complied with the provisions of Chapter XV in this relevant connection, therefore, the contrary arguments of the learned counsel for the petitioners “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances. The law laid down by Hon'ble Supreme Court in Shivjee Singh's case (supra) 'mutatis mutandis' is applicable to the facts of the present case and is the complete answer to the problem in hand. 15. All the remaining contentions, relatable to the appreciation of CRM No.M-32045 of 2010 (O&M) 7 evidence, now sought to be urged on behalf of the petitioners-accused, are not tenable in the absence of any cogent record, which can only be appreciated during the course of trial by the trial Court. 16. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the petitioners. 17. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of the trial of the case, as there is no merit, therefore, the instant petition is hereby dismissed, in the obtaining circumstances of the case. 1.11.2010 (Mehinder Singh Sullar) AS Judge Whether to be referred to reporter?Yes/No