Rumi Kumari Phukan, J.

1. Today learned counsel for the petitioner remained absent despite their names being shown in the Cause List. Report reveals that the case is filed as far back as on 01.11.2017 and since then the stay is operating in this case.

2. As the learned counsel for the respondent, Mr. S.H. Gupta, is present, the matter is taken up for disposal. The counsel for the petitioner cannot raise any plea of prejudice as their names have duly been shown in the Cause List and on earlier occasions, on their prayer, the case was adjourned from time to time.

3. By way of these three applications, under Section 482 Cr.P.C., the petitioner, who has been arrayed as an accused in three complaint cases, namely, (1) CR Case No. 110c/2016, CR Case No. 111c/2016 and CR Case No. 112c/2016, pending before the learned Chief Judicial Magistrate, Kamrup, under Section 138 of the NI Act, has sought for quashing of the aforesaid cases on the ground that the said case was instituted without condoning the delay by learned court and cognizance was taken by the court without complying with the provision of Section 202 Cr.P.C.

4. It may be noted that all the three complaint cases were filed alleging that the present petitioner, being the Director of the company, namely, Just Pay Solutions Private Limited, had issued three cheques to the different complaint, but all the three cheques have been bounced when it was deposited in the bank. I have perused the materials in detail annexed with the complaint petition. The only grievance of the complainant/respondent herein is about bouncing of cheques, issued by the present petitioner.

5. In view of the issue raised by the petitioner, we will confine our attention to the said grievance. Referring to a decision of KS Joseph vs. Philips Carbon Black Limited and another, reported in (2016) 11 SCC, the petitioner herein has raised the contention that in all the cases cognizance was taken without complying the provisions of Section 202 of the Cr.P.C. But after perusal of the aforesaid decision in para 10, it is to be noted that the Hon'ble Apex Court has not addressed the issue as to whether cognizance taken by the Court without complying with the provision of Section 202 Cr.P.C., is bad and left the matter open. The decision relied by petitioner has no relevance, to the issue.

6. The learned counsel for the respondent has however, placed reliance on the decision of 2018 SCC Online Cal 1741 2016 (5) Mh.L.J. Dr. Rajul Vs. Reliance Capital Ltd. and the decision of Karnataka High Court in Baburao Chinchanasur Vs. Smt. Anjana A. Shanthaveer, in Crl. Petition No. 8639/2016 dated 03.03.2017 and in all the decisions, hon'ble Court has elaborately discussed that compliance of the provisions of Section 202 Cr.P.C. is not mandatory while taking contingence under Section 138 of the NI Act.

In Reliance Capital Ltd. (supra), following issues were taken up for decision:

1. Whether the amendment of Section 202 of the Code of Criminal Procedure, 1973 as enacted vide Section 19 of the Criminal Procedure (Amendment) Act, 2005 (25 of 2005) casts a mandatory duty upon the Magistrate to conduct an inquiry under Section 202 of the Code before issuing process under Section 204 of the Code qua an accused who resides outside the territorial limit of the court of the said magistrate

2. What will be the nature of such inquiry under Section 202 of the Code qua an accused who resides outside the territorial limit of the said Court

3. Whether non-compliance of such inquiry in terms of Section 202 (as amended vide Section 19 of the Criminal Procedure (Amendment) Act 2005 (25 of 2005) will invalidate or vitiate the order of process so issued

4. Whether non-compliance of such inquiry in terms of Section 202 (as amended vide Section 19 of the Criminal Procedure (Amendments) Act 2005 (25 of 2005) can be raised only at the initial stage of the proceedings or after much deliberation as well

5. Whether the amendment of Section 202 of the Code of Criminal Procedure, 1973 as enacted vide Section 19 of the Criminal Procedure (Amendment) Act 2005 (25 of 2005) will apply in case of offences punishable under Section 138/141 of the Negotiable Instrument Act, 1881"

After elaborate discussion of the above issues it was held that in cases falling under Section 138 read with Section 141 of the NI Act, the Magistrate is not mandatorily required to comply with the provisions of Section 202(1) before issuing summons to an accused residing outside the territorial jurisdiction of the learned Magistrate concerned.

The above issues are answered in the following manner:

I. According to the settled principles of law, the amendment of sub-section (1) of Section 202 Cr.P.C. by virtue of section 19 of the Criminal Procedure (Amendment) Act, 2005, is aimed to prevent innocent persons, who are residing outside the territorial jurisdiction of the Learned Magistrate concerned, from harassment by unscrupulous persons from false complaints. The use of expression "shall", looking to the intention of the legislature to the context, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate.

II. Keeping in mind the object sought to be achieved by way of amendment of Sub-section (1) of Section 202 Cr.P.C., the nature of enquiry as indicated in Section 19 of the Criminal Procedure (Amendment) Act, 2005 the Magistrate concerned is to ward of false complaints against such persons who reside at far of places with a view to save them from unnecessary harassment and the Learned Magistrate concerned is under obligation to find out if there is any matter which calls for investigation by Criminal Court in the light of the settled principles of law holding an enquiry by way of examining the witnesses produced by the complainant or direct an investigation made by a police officer as discussed hereinabove.

III. When an order of issuing summon is issued by a learned Magistrate against an accused who is residing at a place beyond the area in which he exercises his jurisdiction without conducting an enquiry under Section 202 Cr.P.C., the matter is required to be remitted to the learned Magistrate concerned for passing fresh orders uninfluenced by the prima facie conclusion reached by the Appellate Court.

IV. Keeping in mind the object underlined in Section 465 Cr.P.C. that if on any technical ground any party to the criminal proceedings is aggrieved he must raise the objection thereof at the earliest stage. In the event of failure on the part of an aggrieved party to raise objection at the earliest stage, he cannot be heard on that aspect after the whole trial is over or even at the later stage after his participation in the trial.

V. In cases falling under Section 138 read with Section 141 of the NI Act, the Magistrate is not mandatorily required to comply with the provisions of Section 202(1) before issuing summons to an accused residing outside the territorial jurisdiction of the learned Magistrate concerned."

The aforesaid decision is relevant and appropriate in the matter in hand. In the aforesaid decision has been categorically held that "The Negotiable Instruments (Amendment) Act, 2015 defines and restricts the territorial jurisdiction to a court specified in Section 142(2)(a) and (b) of the. The said issue of territorial jurisdiction which has to be decided on the basis of the documents, climates the need for further inquiry on jurisdictional issue. It is therefore follows that the Magistrate can arrive at the requisite satisfaction about the essential ingredients of the offence including the issue of territorial jurisdiction at the end of the enquiry under Section 200 Cr.P.C. itself and this obviates the need of holding further enquiry under Section 200 Cr.P.C. This being the position further enquiry under sub-section (1) of Section 202 of the Code, if held to be mandatory in complaints filed under Section 138 NI. Act, will be nothing but ritualistic, idle and an empty formality."

7. I respectfully agreed to the aforesaid decisions. The provisions of Section 142 of theprescribe certain criteria for making complaint and taking cognizance by a court within a certain time limit and in view of which the Court is to take cognizance within a specified period (unless certain delay is condoned on the prayer) and it no where contemplated that the Court is to go for further inquiry while taking cognizance. In the, a special provision has been made so as to assume commission of offence simply based on legal presumption, which has been categorised under the itself and that being so, conducting of inquiry, which may take certain time, may frustrate the provision of the. Under Section 143(3) trial is to be conducted as expeditiously as possible. The intention of the legislature itself will be frustrated by such strict adherence to the provision of 202 Cr.P.C.

8. In National Bank of roman vs. balaka Abdul Aziz, reported in 2013 2 SCC 488 , it has been held that the scope of inquiry under Section 202 Cr.P.C. is restricted to find out the truth or otherwise of the allegation. Going by the intent of Section 202 Cr.P.C. it will be found that the reason and object of the NI Act is for on different context. The offence under Section 138 of the NI Act can be proved merely by raising legal presumption and there is no necessity of ascertainment of truth unlike other offence. In such offence the question is to be decided by Court of law as to whether such cheque was issued by the person concern and/or it was issued against any debt or liability. Section 138/139 of NI Act speaks about certain presumption that can be raised in such cases.

9. In the considered opinion of this Court, the provision of Section 202 Cr.P.C. is not applicable to a case under Section 138 of NI Act as has been discussed above. Accordingly, contention raised by the petitioner is answered in negative.

10. As regard the contention that cognizance has been taken without condoning the delay by the learned trial court, I have gone through the LCR. Although the LCR of CR 110/2016 is not found but certified copy of the relevant order have been produced by the learned counsel, which I have taken note of being similar in all the cases. It is to be noted that the matter of condoning the delay was raised by the respondent and necessary notice was also issued to the opposite party (petitioner herein) and thereafter by its orders, dated 04.01.2017 and 19.01.2017 the Court has considered the point of delay and condoned the same, which again negated the contention that has been raised in the present three petitions. Resultantly, there remains no any substance to the contention that has been raised by the petitioners herein.

11. Accordingly, all the three petitions stands dismissed. The two case records pertaining to CR Case No. 111C/2016 and CR Case No. 112C/2016 be returned to the trial court with a direction to proceed with the trial of all three cases without further delay.

12. Interim order stands vacated.

13. The parties are directed to appear before the trial court on 07.06.2019 and learned court will proceed with the cases.