LexDEVENDRA KISHANLAL DAGALIA versus DWARKESH DIAMONDS PVT. LTD. AND ORS.
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A B [2013] 17 S.C.R. 380 DEVENDRA KISHANLAL DAGALIA v. DWARKESH DIAMONDS PVT. LT[). AND ORS. (Criminal Appeal Nos. 1997-98 of 2013) NOVEMBER 25, 2013 [SUDHANSU JYOTI MUKHOPADHAYA AND V. GOPALA GOWDA, JJ.] Code of Criminal Procedure, 1973 - ss.201, 204 & 482 C - Power of the Magistrate to recall process of summons - Held: Once decision is taken and summons is issued, in absence of power of review including inherent power to do so, remedy fies before the High Court uls.482 CrPC or under Art. 227 of the Constitution and not before the Magistrate - Once D the Magistrate taking cognizance of an offence forms his opinion that there is sufficient ground for proceeding and issues summons u/s.204 CrPC, there is no question of going back following the procedure u/s.201 CrPC - In absence of any power of review or recall of the order of issuance of E summons, the Magistrate cannot recall the summon in exercise of power u/s.201 CrPC - Constitution of India, 1950 - Art.227. F Negotiable Instruments Act, 1881 - s. 138 - Offence under - Jurisdiction of the Magistrate to issue summons - Held: Offence uls. 138 can be completed only with the concatenation of all the five components, namely, (1) drawing of the cheque; (2) presentation of the cheque to the bank; (3) returning the cheque unpaid by the drawee bank; (4) giving notice in writing to the drawer of the cheque demanding G payment of the cheque amount; and (5) failure of the drawer to make payment within 15 days of the receipt of the notice - It is not necessary that all the above five acts should have perpetrated at the same locality - In the case in hand, the H 380 DEVENDRA KISHANLAL DAGALIA v. DWARKESH DIAMONDS 381 PVT. LTD. business dealing was held at Mumbai; the products were A\ supplied from Mumbai to New Delhi, cheques were handed over at Mumbai and the cheque.s were dishonoured by the bankers of respondents at New Delhi, and legal notice was issued from Mumbai - At least one act out of the five ingredients of s. 138 having committed at Mumbai, the B complaint preferred by appellant before the Magistrate at Mumbai was maintainable. The questions which arose for consideration in the present appeal were 1) whether the Magistrate after having found sufficient ground for proceeding in case and issued summons under Section 204 Cr.P.C. has the jurisdiction to recall or review the order by exercising its power under Section 201 Cr.P.C.; and 2) whether the petition filed by appellant under Section 138 of the Negotiable Instruments Act, 1881 was maintainable at Mumbai on the ground that goods were supplied from Mumbai to Delhi and cheques were handed over at Mumbai and legal notice was issued from Mumbai. Allowing the appeals, the Court HELD:1.1. The Magistrate is required to issue summons for attendance of the accused only on examination of the complaint and on satisfaction that there is sufficient ground for taking cognizance of the offence and that it is competent to take such cognizance of offence. Once the decision is taken and summon is issued, in the absence of a power of review including inherent power to do so, remedy lies before the High Court under Section 482 Cr.P.C or under Article 227 of the ConstitUtion of India and not before the Magistrate. [Para 14] [387-D-E] 1.2. Section 201 Cr.P.C. can be applied immediately on receipt of a complaint, if the Magistrate is not competent to take cognizance of the offence. Once the c D D E F G 382 SUPREME COURT REPORTS [2013] 17 S.C.R. A Magistrate taking cognizance of an offence forms his opinion that there is sufficient ground for proceeding and issues summons under Section 204 Cr.P.C., there is no question of going back following the procedure under Section 201 Cr.P.C. In absence of any power_ of review B or recall the order of issuance of summons, the Magistrate cannot recall the summon in exercise of power under Section 201 Cr.P.C. [Para 16] [388-8-D] c Ada/at Prasad vs. Roop/al Jindal and others (2004) 7 sec 338 - relied on. 2.1. The offence under Section 138 of the Negotiable Instruments Act, 1881 can be completed only with the concatenation of all the five components, namely, (1) drawing of the cheque; (2) presentation of the cheque to D the bank; (3) returning the cheque unpaid by the drawee bank; (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount; and (5) failure of the drawer
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