1 WP Nos. 2692/10, 2883/10 2521/10 & 2603/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2692 OF 2010 Suguna Nakkar Krishnamurthy .... Petitioner. V/s M/s Evans Chem India Pvt. Ltd. and another. ..... Respondents. ALONGWITH CRIMINAL WRIT PETITION NO.2883 OF 2010 Mayuka Labs Private Ltd and another .... Petitioners. v/s M/s Evans Chem India Pvt. Ltd and another ..... Respondents. ALONGWITH CRIMINAL WRIT PETITION NO.2521 OF 2010 Meera Aralikatte Narayan .... Petitioner. v/s M/s Evans Chem India Pvt. Ltd. and another ..... Respondents. 2 WP Nos. 2692/10, 2883/10 2521/10 & 2603/10 ALONGWITH CRIMINAL WRIT PETITION NO.2603 OF 2010 Nakka Krishnamurthy .... Petitioner. v/s M/s Evans Chem India Pvt. Ltd. and another ..... Respondents. Mr. U.L. Shah for the Petitioners in all these Writ Petitions. Mrs. V.R. Bhosale, APP for the State in Writ Petition Nos. 2692/2010 and 2883/2010. Mrs. M.R. Tidake, APP for the State in Writ Petition Nos. 2521/2010 and 2603/2010. CORAM: V. M. KANADE, J. DATE : 27th October, 2010 P.C.:- 1. Petitioners in all these Writ Petitions are challenging the order of issuance of process passed by the Metropolitan Magistrate, 2nd Court, Mazgaon, Mumbai in complaints filed by Respondent No.1 for the offence punishable under section 420 of the Indian Penal Code. 3 WP Nos. 2692/10, 2883/10 2521/10 & 2603/10 2. Brief facts are that the Complainant is a Company incorporated under the provisions of Companies Act, 1956 and is dealing in the business of manufacturing and selling chemicals which is used in various chemical and other industries. According to the complainant, the Petitioner – original accused approached the Complainant at its office and on representation made by the Petitioners, goods were supplied, total value of which was Rs 35,47,033.00 under Invoice dated 13/10/2008 and 24/11/2008. The cheques given towards discharge of the said liability, however, were dishonoured and, therefore, initially, a complaint was filed under section 138 of the Negotiable Instruments Act. The Complainant also filed complaint under section 420 of the Indian Penal Code and the learned Magistrate, after recording the statement of Mr Nitin Mehta and other witness viz. Mr. Darshan Nitin Mehta and one other Director, issued process. Being aggrieved by the said order of issuance of process, Petitioners have approached this Court for quashing the said impugned order dated 02/09/2009. 3. The learned Counsel appearing on behalf of Petitioners firstly submitted that the Petitioners are residing at Secunderabad, Andhra Pradesh which is outside the jurisdiction of the Metropolitan Magistrate. It is, therefore, submitted that the learned Magistrate ought to have postponed the order of issuance of process and, thereafter, ought to have held an inquiry as contemplated under the 4 WP Nos. 2692/10, 2883/10 2521/10 & 2603/10 provisions of section 202 of the Criminal Procedure Code. He submitted that the impugned order was passed without following the mandatory procedure and, therefore, the said order is liable to be set aside. He then submitted that the verification statement also was vague and it did not contain the statement that the petitioners were in charge of the day- to-day affairs of the Company and, therefore, the learned Magistrate had erred in issuing the process on the basis of the verification which was apparently prepared by Respondent No.1. It is, therefore, submitted that there was a clear non-application of mind on the part of the learned Magistrate. It is then submitted that Respondent No.1 had filed complaints under section 138 of the Negotiable Instruments Act and the process was issued on the said complaints. Petitioners had filed Writ Petitions bearing Nos. 773, 775, 776 of 2010 challenging the order of issuance of process on various grounds. It is submitted that by order dated 29/04/2010, the impugned order of issuance of process was set aside by this Court and the learned Magistrate was directed to record a fresh verification of the complainant. It is submitted that since the order of process was set aside, Petitioners were acquitted by this Court by order dated 29/4/2010. It is submitted that, therefore, the second complaint for the same cause of action based on the same set of facts, as alleged in the complaint filed under section 138, was therefore hit by the provisions of section 300 and, on that ground also, the complaint was liable to be 5 WP Nos. 2692/10, 2883/10 2521/10 & 2603/10 set aside. 4. It is not possible to accept the submissions made by the learned Counsel appearing on behalf of the Petitioners. So far as the submission made by the learned Counsel for the Petitioners that inquiry under section 202 was not made is concerned, the said submission is without any substance. In the present case, the learned Magistrate was pleased to hold an inquiry under section 200. The statement of one Mr. Nitin Mehta was recorded and, thereafter, statements of two other witnesses viz one Mr. Darshan Nitin Mehta and another Director were recorded by the learned Magistrate. The inquiry, as contemplated under section 200, therefore, was held by the learned Magistrate and after he was satisfied that prima facie case is made out, the process was issued. Having held the inquiry under section 200, in my view, it was not necessary to again hold a separate inquiry under section 202. As such, no illegality has been committed by the learned Magistrate. In any event, not holding of inquiry under section 202 cannot be said to be a material irregularity as envisaged under sections 460, 461 and 465 sub-clause (2) of the Criminal Procedure Code and, as such, no prejudice is caused to the accused since the accused can always file an application for discharge under section 245(2) at an appropriate stage. 5. So far as the second submission made by the learned 6 WP Nos. 2692/10, 2883/10 2521/10 & 2603/10 Counsel for the Petitioners regarding improper recording of the verification is concerned, in my view, the said submission also is without any substance. In the present case, apart from recording verification statement of the complainant, the learned Magistrate was also pleased to record the statements of one Mr. Darshan Nitin Mehta and another Director and only thereafter process was issued. In any event, improper recording of verification is not an illegality, much less the material illegality which would vitiate the order of issuance of process. 6. So far as the third submission of the learned Counsel appearing on behalf of the Petitioner that the second complaint was hit by the provisions of section 300 is concerned, in my view, the said submission is also without any substance. So far as the first complaint is concerned, it was filed under section 138 of the Negotiable Instruments Act. This Court had, by consent of parties, remanded the matter to the learned Magistrate and directed the learned Magistrate to record a fresh verification and pass orders in accordance with law. It is a well settled position in law that separate complaint for the offence punishable under section 420 is maintainable and, as such, the submission of the learned Counsel for the Petitioner that the second complaint was hit by the provisions of section 300 is without any substance. 7 WP Nos. 2692/10, 2883/10 2521/10 & 2603/10 7. Hence, there is no merit in the submissions made by the learned Counsel for the Petitioners. Writ Petitions are, therefore, dismissed. 8. Petitioners however are exempted from appearing in the Trial Court. Their plea may be recorded through their advocate, if it is not already recorded. Their statements under section 313 of the Cr.P.C. may be recorded through their advocate, provided they give an undertaking to the learned Magistrate that they shall not dispute their identity or correctness of the answers given to the questions asked under section 313 of Cr.P.C. The learned Magistrate shall follow the procedure laid down under section 313(5) and as per the guidelines laid down in Keya Mukherjee’s case. 9. All these Writ Petitions are disposed off in the aforesaid terms. (V.M. KANADE, J.) 8 WP Nos. 2692/10, 2883/10 2521/10 & 2603/10