Piyush Bharat Saini vs paras Gupta

Piyush Bharat Saini vs paras Gupta

Citation- CRIMINAL MISC. M NO.5325 OF 2012  

Date of judgement– MARCH 11, 2013

Court- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Case type-CRIMINAL

Appellant- Piyush Bharat Saini

Respondent- Paras Gupta

Bench- HON’BLE MR. JUSTICE RANJIT SINGH

Referred section- Section 202 Cr.P.C.Section 192, Section 320 Cr.P.C,Section 147, Section 138,Section 147, Section 142, Section 143,Section 145,Section 146, Sections 203, 204 Cr.P.C., Section 200 to 204 Cr.P.C.

FACTS OF THE CASE 

In each of these examples, the person who filed the petition is a local of Delhi. At the Kurukshetra district court, an official complaint has been lodged against him. This complaint was submitted by the respondent who is also the complainant under Section 138 of the Act. The petitioner is accused of having accepted the sum of ’15 lacs for the purpose of securing a place in a post-graduate programme in medical science. This accusation is based on the fact that the petitioner is the founder of the company Education Wise. In light of the fact that he had been unable to secure the seat, he wrote a cheque from the account that he had at Axis Bank in order to reimburse the complaint for the money. After that, he issued another cheque from HDFC Bank’s location in Delhi. When these checks were presented for payment in March and October of 2010, respectively, they were not honoured as payment. The petitioner responded to the second communication from the complainant by sending a cheque for the amount of ‘5 lacs as a partial payment on February 15, 2011. This cheque was written to the ICICI Bank branch located in Shalimar Bagh in New Delhi. When this cheque was submitted in Kurukshetra on May 12, 2011, it was returned with the notation “funds insufficient” on the back. Because of this, a complaint has been lodged against the petitioner in the present proceeding.The order was issued under Section 138 of the Act, which was dated July 18, 2011. As a result, the petitioner has petitioned this Court in an effort to have the complaint and the summoning order quashed. The petitioner’s primary argument is that he was called without following the procedure outlined in the modified Section 202 of the Criminal Procedure Code.

The facts surrounding the other petitions that are related to this one are very similar. In those petitions, the petitioner is accused of having issued a cheque that was drawn on the ICICI Bank in New Delhi. However, the cheque was returned with the identical remarks on a variety of different dates. The petitioner will thus argue for the dismissal of those complaints as well as the summons orders, principally based on the same premise.

ISSUE OF THE CASE

It is also possible to come to a settlement about the disagreement, and infractions of the Act are only established when the accused person stubbornly refuses to discharge the liability after being informed of their need to do so. If the accused individual chooses to settle the matter out of court, then he cannot be brought to trial for the alleged crime.?

ARGUMENTS

The court took into account the many different terms that were used in the section, as well as the meaning of those words, while determining the extent of the inquiry that the section had in mind. In relation to the breadth of the inquiry, the Court has reached the following conclusions:

The degree of formality of the proceedings, as well as the breadth and depth of the investigation, are therefore totally up to the discretion of the Magistrate, as may be seen from the previous sentence. In addition, it was decided that this clause is permissive and not mandatory in any way. Even though it was pointed out that a Magistrate does not have to conduct an investigation in accordance with this section in each and every case and that he can only do so when he “thinks fit,” it was believed that it would be beneficial to conduct an investigation in situations in which the complainant is not speaking from his own personal knowledge. This was one of the views that was held. Even before the amendment, there were several circumstances in which such an investigation was considered to be required. It is required to conduct such an investigation in accordance with Section 10 of the Child Marriage Restraint Act of 1929, and the failure to do so was deemed to render the entire trial invalid. In this context, the case entitled State of Gujarat v. Patel, Jivraj, and Others, which was reported in the Gujarat Law Reporter in 1966, may be cited. It is possible that there is enough information to understand the boundaries of the necessity of an investigation, which has recently become necessary in situations in which an accused resides outside of the jurisdiction of a Magistrate. It would thus be appropriate to hold that in a case involving a person who resides outside of the jurisdiction of a Magistrate, if the process is issued in accordance with CRIMINAL MISC. M NO.5325 OF 2012: 7 :

Without conducting an investigation, it may render the entire trial invalid. Without a shadow of a doubt, the Supreme Court has reached the conclusion that it is secure to assert that it would be safe to say that the manner in which this amendment has been introduced and the wording thereof, when read in the light of the objectives behind the same, would make it clear that the legislature intended for this provision to be made as obligatory or mandatory in nature. When it was discovered that the individual in question was living outside of the court’s jurisdiction, the court reached the conclusion that an investigation, in addition to the other alternatives that are open to the magistrate in this respect under Section 202 of the Criminal Procedure Code, would be required.

Mr. Cheema, despite the fact that he would endorse the ratio of law in S.K.Bhowmik’s case (above), would claim that this investigation may not be the need when summoning an accused person in a complaint made under Sections 138 of the Act, even if he may be staying beyond its jurisdiction. When applying the stringent requirements of Section 202 of the Criminal Procedure Code, the defence attorney would emphasise that the trial under special legislation such as the Negotiable Instruments Act, in which the prompt resolution of such cases is one of the primary purposes and aims thereof, needs to be borne in mind. The proceedings that are being brought under Section 138 of the Act are said to be of a quasi-criminal nature by the lawyers. In such circumstances, the potential complainant is needed to finish specific procedures before they may file a complaint. If these formalities are not completed, the complaint cannot be maintained in its current form. It is also possible to come to a settlement about the disagreement, and infractions of the Act are only established when the accused person stubbornly refuses to discharge the liability after being informed of their need to do so. In cases when the accused individual chooses to settle out of court, it is impossible to bring criminal charges against that person. CRIMINAL MISC. M NO.5325 OF 2012: PARAGRAPHS 8 AND 9:according to the terms of Section 138 of the Act. The newly added punitive clause, which was put to the law book in order to serve a public interest, has undoubtedly caused a bottleneck in the criminal justice system at the level of the Magistrates. The fact that a disproportionately large number of cases are currently pending before Magistrates in various Courts is something that has been a source of worry for everyone involved in the system that deals with the delivery of criminal justice. The judicial system is being put under an extraordinary amount of strain as a result of this action. In light of all of this, the Attorney General, who is participating in this case as an amicus curiae, has argued that it is crucial to make use of compounding as a time-saving strategy in order to speed up the process of concluding cases that fall under this Act. He appealed with the court to establish certain rules and to offer some disincentives for the plaintiffs, so that they may not choose to compound their misdeeds or might choose to do so at an overly late stage of the lawsuit. This was intended to be a gentle prod in the right direction for the plaintiffs involved in the CRIMINAL MISC. M NO.5325 OF 2012:10.

JUDGEMENT

In the group of Criminal Miscellaneous Petitions that the petitioner has submitted, one of the most important questions that has arisen is whether or not the stringent requirements of the amended provisions of Section 202 Cr.P.C., which lay down a requirement of holding an enquiry, where the person sought to be summoned is outside the jurisdiction of the Court, would apply in the cases of offences under Section 138 of the Negotiable Instruments Act (for short, “the Act”). The petitioner in these cases has challenged the summoning order, primarily on the ground that his summoning was ordered in these cases without holding an enquiry under Section 202 of the Criminal Procedure Code. As a result, a prayer has been made for the quashing of the said summoning order impugned in these various Criminal Misc. M Nos.5325, 5326 and 5327 of 2012 (Piyush Bharat Saini Vs. Paras Gupta), 15609 of

This court, in the case of S.K.Bhowmik vs. S.K.Arora and another, 2007 (4) RCR (Criminal) 650, has held that the provisions of Section 202 Cr.P.C. are mandatory, and as a result, this court has viewed that summoning a person accused in the complaint without holding enquiry, as envisaged under Section 202 Cr.P.C., would be violative of the amended provisions of Section 202 Cr.P. Therefore, the petitioner has relied on the ratio of this judgement in order to plead for the quashing of the summons orders on this ground in the applications that were previously mentioned. It is therefore up to be determined whether the stringent new rules of Section 202 of the Criminal Procedure Code would also apply to offences that are classified as falling under Section 138 of the Act.

As a result, new language that reads “and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction” has been added to the section that has been modified. In situations like these, the Magistrate is required to delay the issuance of process against the accused and either investigate the case himself or direct an investigation to be conducted by a police officer or some other person he deems appropriate for the purpose of determining whether or not there is sufficient ground for proceeding with the case. If the Magistrate finds that there is sufficient ground for proceeding, the case will move forward. It was also brought to our attention that this amendment was made for a specific reason, and in light of this, the draught that accompanied the amendment was reviewed, which may be summarised as follows:

“Clause 19: False complaints are filed against people who reside in remote areas solely in order to harass those individuals.” This clause seeks to amend Subsection (1) of Section 202 to make 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 the purpose of determining whether or not there was sufficient ground for proceeding against the accuse. This is done in order to ensure that innocent persons are not harassed by unscrupulous persons.On each side, you may find examples that serve as precedents. All of the cases in which the requirements of Section 202 of the Criminal Procedure Code were not relied upon by the Courts when they denied the petition for quashing had the same primary justification, which was that acts committed under the Act are particular offences for which the compensating portion is just as important as the punitive aspect. Without a shadow of a doubt, there are certain provisions introduced under the Act that have watered down the procedural requirement that is outlined in the Code of Criminal Procedure. In the early portion of this ruling, specific reference was made to the aforementioned special provisions in great detail. To briefly summarise, it should be brought to your attention that the Act includes a provision in Section 142 for the taking of cognizance of violations. According to this section, in order for a court to take cognizance of an offence that is punishable under Section 138 of the Act, the offender must first file a complaint in writing with the court. If the offender is the payee or the bearer of the cheque, the complaint must be filed within one month after the occurrence of the offence. The Act includes a provision in Section 143 that allows for the cases to be tried in a summary manner. A provision for the various ways of service of summons is included in Section 144 of the Act. As a result, a summons may be served on the accused or witness at a location where he or she regularly dwells or carries on business. Then there is a provision for providing testimony on affidavits, which is included in the statute. According to Section 146 of the Act, a bank’s slip is considered to be prima facie evidence when it indicates that a cheque has been dishonoured. Based on this evidence, a presumption can be established about the fact that the cheque was dishonoured, unless the inference is rejected. In addition, there is a unique provision for the compounding of violations at any point in the process. With these specific provisions, there is little doubt that an argument might be made for any particular CRIMINAL MISC. M little.5325 OF 2012: 19 :

handling of matters in accordance with the Act.

The purpose of these regulations is to ensure a rapid trial and the prompt disposition of cases, the likes of which have been proven to have clogged up the criminal judicial system. If stringent adherence in such circumstances where specific evidences can be lead under the enabling provisions provided under the Act is insisted upon, then this would contradict the necessity of rapid settlement of the cases, which is the goal of the Act itself. As a result, the opinion that has been stated in the line of cases is reasonable. This opinion states that the investigation that is envisioned under the altered provisions of Section 202 of the Criminal Procedure Code may not necessarily be insisted upon in those cases that are tried under the Act when the accused person resides beyond the jurisdiction of the Magistrate. In spite of this, the legal precedent that was established in the S.K. Bhowmik case (supra) and in other lines of judgements will continue to apply, and it is impossible to conclude that it has been weakened in any way as a result of the observations that were made before. I am inclined to conclude that the rigorous requirement of Section 202 Cr.P.C. may not be the necessity in cases under the Act as that may tend to undermine the very objective of quick disposition of the cases under the Act and may also invalidate the impact of special provisions created under the Act. Additionally, I am inclined to think that the strict requirement of Section 202 Cr.P.C. may not be the need in instances under the Act. The argument put up by the petitioner in each and every one of these requests to have the complaints and the summons orders thrown out cannot, therefore, be granted.

WRITTEN BY ASHITTA ARORA, OP JINDAL GLOBAL UNIVERSITY, AN INTERN UNDER LEGAL VIDHIYA 

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