Whether the court can conduct S 202 CRPC proceeding under dishonour of cheque case on the basis of documents only?

 We may note here that as far as complaints under

Section 138 of the NI Act are concerned, this Court in

Suo Motu Writ Petition (Criminal)No.2 of 2020 in the case

of "In Re : Expeditious Trial of Cases Under Section 138

of N.I.Act, 18811" has laid down the guidelines. In

clause (3) of paragraph 24 of the said decision, the

Constitution Bench has directed as under:

"3) For the conduct of inquiry under Section

202 of the Code, evidence of witnesses on behalf

of the complainant shall be permitted to be

taken on affidavit. In suitable cases, the

Magistrate can restrict the inquiry to

examination of documents without insisting for

examination of witnesses."

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2484 OF 2023

VISHWAKALYAN MULTISTATE CREDIT CO OP

SOCIETY LTD. VS. ONEUP ENTERTAINMENT PRIVATE LIMITED.

Dated: August 21, 2023.

Leave granted.

Heard the learned counsel appearing for the

appellant. Despite service, no one has entered

appearance on behalf of the respondent.

The appellant is the complainant in a complaint

filed under Section 138 of the Negotiable Instruments

Act, 1881 (for short "the NI Act"). On 26th June, 2021,

the Judicial Magistrate issued process on the complaint.

By the impugned judgment, the High Court has held that as

the respondent was having its office outside the

jurisdiction of the Court of the learned Magistrate, it

was necessary for the learned Magistrate to hold an

inquiry under Section 202 of the Code of Criminal

Procedure, 1973 (for short "the CRPC"). In paragraph 15

of the impugned judgment, the High Court held that for

non-compliance with the mandate of Section 202 of the

CRPC, the order issuing process is illegal. Therefore,

the High Court has proceeded to set aside the order

issuing process. However, no further direction was

issued by the High Court to the learned Judicial

Magistrate to hold an inquiry under Section 202 of the

CRPC.

We may note here that as far as complaints under

Section 138 of the NI Act are concerned, this Court in

Suo Motu Writ Petition (Criminal)No.2 of 2020 in the case

of "In Re : Expeditious Trial of Cases Under Section 138

of N.I.Act, 18811" has laid down the guidelines. In

clause (3) of paragraph 24 of the said decision, the

Constitution Bench has directed as under:

"3) For the conduct of inquiry under Section

202 of the Code, evidence of witnesses on behalf

of the complainant shall be permitted to be

taken on affidavit. In suitable cases, the

Magistrate can restrict the inquiry to

examination of documents without insisting for

examination of witnesses."

We, therefore, modify the impugned judgment and

direct the Trial Court to proceed from the stage of

Section 202 of the CRPC. While doing so, the learned

Magistrate will be guided by the direction issued by the

Constitution Bench which is reproduced above.

1. 2021 SCC OnLine SC 325.

With the above modification, the appeal is partly

allowed.

The inquiry under Section 202 of the CRPC shall be

conducted as expeditiously as possible and in any event

within a period of one month from the date on which a

copy of the order is received by the Trial Court.

..........................J.

(ABHAY S.OKA)

..........................J.

(PANKAJ MITHAL)

NEW DELHI;

August 21, 2023.

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