Section 202(2) CrPC Inapplicable To Complaints Under Section 138 NI Act In Respect Of The Examination Of Witnesses On Oath: Supreme Court

The Supreme Court reiterated that the Section 202(2) CrPC is inapplicable to complaints under Section 138 in respect of the examination of witnesses on oath.

The Court observed that the evidence of witnesses on behalf of the complainant shall be permitted on affidavit.

"If the Magistrate holds an inquiry himself, it is not compulsory that he should examine witnesses and in suitable cases the Magistrate can examine documents to be satisfied that there are sufficient grounds for proceeding under Section 202", the bench comprising Justices DY Chandrachud and AS Bopanna observed while dismissing an appeal filed against a Gujarat High Court judgment refusing to quash a complaint under Section 138 of Negotiable Instruments Act.

One of the issues raised by the accused was whether the Magistrate, in view of Section 202 CrPC, ought to have postponed the issuance of process? The accused had contended that Section 202 CrPC envisages the postponement of the issuance of process where the accused resides beyond the jurisdiction of the territory of the court. In this case, no inquiry was carried out by the Magistrate.

The court noted as follows:

1. Under Sub-Section (1) of Section 202, a Magistrate upon the receipt of a complaint of an offence of which he/she is authorized to take cognizance is empowered to postpone the issuance of process against the accused and either (i) enquire into the case; or (ii) direct an investigation to be made by a police officer or by such other person as he thinks fit. The purpose of postponing the issuance of process for the purposes of an enquiry or an investigation is to determine whether or not there is sufficient ground for proceeding. However, it is mandatory for the Magistrate to do so in a case where the accused is residing at a place beyond the area in which the Magistrate exercises jurisdiction. T
2. Section 203 stipulates that if the Magistrate is of the opinion on considering the statement on oath, if any, of the complainant and of the witnesses, and the result of the enquiry or investigation if any under Section 202 that there is no sufficient ground for proceeding, he shall dismiss the complaint recording briefly his reasons for doing so.
3. The requirement of recording reasons which is specifically incorporated in Section 203 does not find place in Section 202. Section 204 which deals with 25 the issuance of process stipulates that if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, he may issue (a) in a summons case, a summons for attendance of the accused; (b) in a warrant case, a warrant or if he thinks fit a summons for the appearance of the accused

Referring to Re: Expeditious Trial of Cases under Section 138 of N.I. Act 1881 LL 2021 SC 217, the court observed:

Section 145 of the NI Act provides that evidence of the complainant may be given by him on affidavit, which shall be read in evidence in an inquiry, trial or other proceeding notwithstanding anything contained in the CrPC. The Constitution Bench held that Section 145 has been inserted in the Act, with effect from 2003 with the laudable object of speeding up trials in complaints filed under Section 138. Hence, the Court noted that if the evidence of the complainant may be given by him on affidavit, there is no reason for insisting on the evidence of the witnesses to be taken on oath. Consequently, it was held that Section 202(2) CrPC is inapplicable to complaints under Section 138 in respect of the examination of witnesses on oath. The Court held that the evidence of witnesses 32 on behalf of the complainant shall be permitted on affidavit. If the Magistrate holds an inquiry himself, it is not compulsory that he should examine witnesses and in suitable cases the Magistrate can examine documents to be satisfied that there are sufficient grounds for proceeding under Section 202.

The court noted that, in this case, the Magistrate has adverted to: (i) The complaint; (ii) The affidavit filed by the complainant; (iii) The evidence as per evidence list and; and (iv) The submissions of the complainant. The order passed by the Magistrate cannot be held to be invalid as betraying a non-application of mind, the court held.

Also from the judgment:

Section 138 NI Act Attracted Even In Cases Where Debt Is Incurred After Cheque Is Drawn But Before Presentation: Supreme Court

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