Court dismisses petition challenging cognizance under Section 138 NI Act without Section 202 inquiry, citing waived objections due to active trial participation.
In a significant ruling, the Jammu & Kashmir and Ladakh High Court at Srinagar has dismissed a petition challenging the cognizance of a complaint under Section 138 of the Negotiable Instruments Act, 1881, without compliance with Section 202 of the Criminal Procedure Code. The case involves a cheque dishonour complaint filed by Nisar Ahmad Malik against Aijaz Ahmad Bhat, alleging the dishonour of cheques amounting to Rs. 2,10,000.
Presiding over the matter, Justice Shahzad Azeem emphasized the mandatory nature of conducting an inquiry under Section 202 Cr. P. C. when the accused resides beyond the territorial jurisdiction of the court. However, the court ruled that procedural irregularities are curable, especially when the accused actively participates in the trial without raising timely objections.
The petitioner, Aijaz Ahmad Bhat, sought to challenge the cognizance taken by the Chief Judicial Magistrate, Shopian, on November 12, 2012, arguing that the magistrate failed to conduct the necessary inquiry before issuing the process. Bhat's petition was filed after a considerable delay of over 14 years, with the case having progressed to the stage of final arguments as early as October 26, 2017.
During the proceedings, it was revealed that Bhat actively participated in the trial, cross-examined witnesses, and led evidence without raising any objections to the alleged procedural lapse. Justice Azeem noted that the objection regarding non-compliance with Section 202 Cr. P. C. is deemed to have been waived due to the petitioner's active participation, making the challenge appear to be an afterthought.
The court further stated that no specific prejudice was demonstrated by the petitioner due to the alleged omission of the inquiry. Under Section 465 of the Criminal Procedure Code, a procedural error does not warrant the reversal or alteration of an order unless a failure of justice is demonstrated, which was not established in this case.
Justice Azeem concluded that the procedural irregularity was curable and did not necessitate interference under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The petition was dismissed along with the connected criminal miscellaneous application.
Before concluding, the court emphasized that the observations made in this judgment are specific to the facts of the present case and should not be interpreted as diluting the mandatory nature of the inquiry under Section 202 Cr. P. C. in cases where objections are raised at the appropriate stage.
This judgment reinforces the principle that procedural lapses can be rectified if the accused has had ample opportunity to defend themselves during the trial, thereby safeguarding the integrity of the judicial process while ensuring justice is served.
Bottom line:-
Compliance with Section 202 of the Criminal Procedure Code (BNSS, 2023) is mandatory before taking cognizance of complaints under Section 138 of the Negotiable Instruments Act, 1881, when the accused resides beyond the territorial jurisdiction of the court. However, procedural irregularities are deemed curable if the accused actively participates in the trial without raising timely objections.
Statutory provision(s):
- Section 138 of the Negotiable Instruments Act, 1881
- Section 202 of the Criminal Procedure Code, 1973 (BNSS, 2023)
- Section 465 of the Criminal Procedure Code, 1973 (BNSS, 2023)
- Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023
