1 (Cr.WP 1375/2010) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1375 OF 2010 Tarshish Exports Through Vijay Kumar Pitta (Proprietor) .... Petitioner. V/s M/s S.G. Global Impex Pvt. Ltd. & Anr. .... Respondents. Mr. Haresh Jagtiani Senior Counsel with Mr. Siddhesh S. Bhole & S. Jain i/b Haresh Jagtiani & Associates for the Petitioner. Mr. S.R. Shinde, APP for the State. CORAM: V. M. KANADE, J. DATE : 22nd June, 2010 P.C.:- 1. Petitioner by this Petition is challenging the order of issuance of process by the learned Metropolitan Magistrate 43rd Court at Borivali, Mumbai on a complaint filed by Respondent No.2 under section 138 of the Negotiable Instruments Act. 2. Brief facts are as under:- 2 (Cr.WP 1375/2010) 3. Respondent No.1 is a Company registered under the Companies Act and Petitioner herein had agreed to sell Iron Ore Fines to them and a contract was executed at Goa on 20/04/2007. The accused, however, failed to fulfill the commitment of supply of Iron Ore Fines and agreed to return the sum of Rs 27 lacs received by accused from the complainant. The cheque deposited by Respondent No.1 given by the Petitioner was dishonoured and, thereafter, a complaint was filed before the learned Metropolitan Magistrate. 4. The learned Counsel appearing on behalf of the Petitioner firstly submitted that the Petitioner is permanently residing at Goa and, as such, the learned Magistrate ought to have postponed the issuance of process against the accused in view of mandatory provisions of section 202 of the Criminal Procedure Code which mandates that if the accused is residing beyond the area in which Magistrate exercises his jurisdiction, the Magistrate is required to make an inquiry and postpone the issuance of process. It is submitted that the Trial Court issued the impugned order on the same day on which the complaint was presented before it and, therefore, the said order was in violation of the mandate prescribed under section 202. It is submitted that said order of process, therefore, is liable to be quashed. It is then submitted that the verification was not properly recorded and the directions given by this Court in Amarnath Baijnath Gupta and Anr. vs. Mohini Organics Pvt. Ltd and 3 (Cr.WP 1375/2010) Anr.1 were not followed and, therefore, on that ground also the said order is required to be set aside. It is then submitted that if the allegations in the complaint and the material in its support does not disclose commission of offence, then it is the duty of the learned Magistrate to ensure that the complaint is dismissed. 5. So far as the first submission of the learned Counsel for the Petitioner that the mandatory provisions of section 202 of the Criminal Procedure Code were not followed is concerned, the said submission cannot be accepted, firstly because, in my view, the said provisions cannot be said to be mandatory merely because the word “shall” has been used in the said provision. If the Magistrate, while recording the verification and holding an inquiry under section 200 of the Criminal Procedure Code comes to the conclusion that prima facie case is made out, in my view, it is not necessary in all cases to postpone the issuance of process under section 202 Cr.P.C and hold a fresh inquiry again in cases where the accused is residing outside the jurisdiction of the court. In a complaint which is filed under section 138 of the Negotiable Instruments Act, the complainant has benefit of the provisions of section 139 and 118 of the Negotiable Instruments Act wherein presumption is raised against the accused about the existence of legal debt and liability and, as such, the burden is on him to rebut the said presumption. The task of the Magistrate, therefore, becomes easy for the 1 2009(3) BomCR 258 4 (Cr.WP 1375/2010) purpose of finding out whether a prima facie case is made out or not. Few ingredients which need to be looked into are (i) issuance of cheque by the drawer, (ii) dishonour of the cheque, (iii) demand notice to be sent by the complainant to the drawer, (iv) service of the said notice, (v) non-payment of the amount mentioned in the cheque within the prescribed period by the accused, (vi) complaint being filed by payee or holder in due course, (vii) necessary averments made in the complaint in the event the other Directors are persons who are not signatories to the cheque are sought to be made liable vicariously in view of the provisions of section 141 of the Negotiable Instruments Act. The learned Magistrate, therefore, has to consider various dates and events for the purpose of being satisfied that prima facie case is made out by the complainant. It is an admitted position that not following the procedure laid down in section 202 is not a material irregularity which vitiates the order since the said provision is not incorporated in section 461 which gives list of material irregularities which vitiate the order. For the reasons given in the judgment dated 9th July 2010 passed in Criminal Application No.1344 of 2010 in the case of Shri Bansilal S. Kabra vs. Global Trade Finance Ltd & Anr., this Court has also taken a view that the said provision is not mandatory. 6. So far as the second objection about recording of the verification is concerned, I have perused the verification which is annexed at Exhibit-B to the Petition. It is no doubt 5 (Cr.WP 1375/2010) true that the said verification appears to be a typed written statement submitted by the complainant. However, as mentioned hereinabove, as long as the verification refers to the dates and events which constitute the offence under section 138 of the Negotiable Instruments Act and the order shows that there is an application of mind on the part of the Magistrate to the said verification and the complaint, merely because verification is in a typed format, that would not by itself be a ground for setting aside the said verification and order of issuance of process passed on the basis of the said verification though it is no doubt true that the Magistrate is expected to record the statement of the complainant instead of accepting a typed copy of the verification from the complainant himself so that verification recorded by the Magistrate reflects that there is proper application of mind on the part of the Magistrate before issuance of order of process. In the present case, the learned Magistrate has observed that he has issued process after perusing the complaint and the verification statement of the complainant and after he was satisfied that the prima facie case is made out. There cannot be any doubt regarding the ratio of the judgment in Amarnath Baijnath Gupta (supra). However, one additional factor which was present in the said case was that the complaint was filed against the Company and its Directors and, therefore, apart from the usual averments which were made in the complaint as well as in the verification, proper averments had to be made in order to make the Directors and other persons vicariously liable and, 6 (Cr.WP 1375/2010) therefore, in the said context, the learned Single Judge had observed that if necessary ingredients were not mentioned in the verification statement for holding that the other Directors are vicariously liable, the process issued on the basis of such verification is liable to be set aside. In the present case, the Petitioner – original accused is a proprietor of a firm and, therefore, provisions of section 141 of the Negotiable Instruments Act are not attracted in the present case. Therefore, the submission of the learned Counsel appearing on behalf of the Petitioner that on account of improper recording of the verification the order of issuance of process could be set aside, cannot be accepted. 7. So far as the third submission of the learned Counsel appearing on behalf of the Petitioner is concerned regarding merits of the case, in my view, at this stage, it would not be proper for this court to go into the merits of the case for the purpose of finding out whether the case is made out by the complainant against the accused or not. Hence, there is no substance in the submissions made by the learned Counsel appearing on behalf of the Petitioner. 8. Petition is accordingly dismissed. (V.M. KANADE, J.) 7 (Cr.WP 1375/2010)