LexNATIONAL BANK OF OMAN versus BARAKARA ABDUL AZIZ & ANR.
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A B [2012] 11 S.C.R. 500 NATIONAL BANK OF OMAN v. BARAKARA ABDUL AZIZ & ANR. (SLP (Crl.) No. 9098/2012) DECEMBER 3, 2012 [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.] Code of Criminal Procedure, 1973: c s. 202 (as amended by Amendment Act, 2005) - Duty of Magistrate - To direct inquiry and investigation - Complaint before CJM Ahmednagar - Against the accused who was resident of an area, not falling within the territorial jurisdiction of the CJM- CJM issuing process for offences u/ss. 418 and D 420 /PC - High Court quashed the complaint on the ground that CJM passed the order without following the procedure laid down u/s.202 - On appeal, held: It was incumbent upon the CJM to carry out an enquiry or order investigation as contemplated u/s. 202, before issuing process which the CJM E had failed - Therefore, order of High Court was correct - However, High Court, instead of quashing the complaint, should have directed the CJM to pass fresh orders following the procedure u/s. 202 - Hence, matter remitted to the Magistrate for passing fresh orders - Penal Code, 1860 - ss. F 418 and 420. s. 202 (as amended by Amendment Act, 2005) - Enquiry under - Scope of - Held: The scope of enquiry under this Section is restricted only to find out the truth or otherwise of the a/legations made in the complaint for the purpose of G issuing process. s. 202 (as amended by Amended Act, 2005) - Investigation under - Nature and scope of - Held: Investigation under this provision is different from the H 500 NATIONAL BANK OF OMAN v. BARAKARA ABDUL 501 AZIZ &ANR. investigation contemplated u/s. 156 Cr.P.C. - It is limited to A the ascertainment of truth or falsehood of the allegations made in the complaint. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 9098 of 2012. From the Judgment & Order dated 03.10.2012 of the High Court of Judicature at Bombay, Bench at Aurangabad in Criminal Application No. 3146 of 2012. Devashish Bharuka for the Petitioner. • The following Order of the Court was delivered ORDER B c 1. The complainant-National Bank of Oman lodged a D private complaint RTC NO.No.260/2007 in the Court of Chief Judicial Magistrate, Ahmednagar against the respondent alleging that he had cheated the bank by swindling 43, 15,000/ U.A.E. Dirhams (equivalent to 5.178 Crores Indian Rupees). The gist of the complaint reads as follows: E "In the year 1995, the applicanVaccused opened current account with the complainant Bank on a representation that he was holding Indian Passport. The accused slowly gained confidence of the complainant Bank. In February 1996, the accused produced trading licence issued by F Abu Dhabi Municipality and Town Planning and represented that he owned firm - M/s Bushra Textiles, situated at Abu Dhabi and engaged in retail and wholesale trading and sale of textiles garments, stationery items, electronics etc. The accused further represented that he G was established in business at Abu Dhabi and was well supported by loyal clientele and was in process of expanding his business, which required financial facilities from the Bank. The accused also represented to the Bank that he had more than enough financial stability and viability H A B c D E . F G 502 SUPREME COURT REPORTS [2012) 11 S.C.R. to honour the financial commitments and pay back the finances made available to him by the Bank. Based on the said solemn representation, the Company in good faith granted to the accused overdraft facility of 2,50,000/- A.E.D. This facility was enhanced from time to lime to the extent of 51 lacs A.E.D. by overdraft loan against trust receipts, local bill limit, credit card etc. till October 2001. The accused, however, committed breach of undertaking and failed to repay the dues of the complainant Bank. The complainant Bank, therefore, contemplated legal action against the accused in order to obtain detention orders from the competent Court at U.A.E. The accused thereupon approached the complainant Bank in November 2002 and entered into a restructuring/ settlement agreement with the accused on 12.11.2002 for A.E.D. 43, 15,000/- by converting all the outstanding liabilities into a term loan to be repaid in 48 installments. The accused undertook to pay the said amount as per terms of MOU and also issued post dated cheques for 24 monthly installments and gave assurance and undertaking that said cheques would be honoured and loan would be
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