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Law Web: Whether it is mandatory to make enquiry as per S 202 of CRPC in case of dishonour of cheque?
Whether it is mandatory to make enquiry as per S 202 of CRPC in case of dishonour of cheque?
Learned counsel further contended that the applicant is residing beyond the jurisdiction of the trial Court and, therefore, it was mandatory to conduct an inquiry in accordance with the amended provisions of Section 202 of the Code of Criminal Procedure. It was argued that although in the order issuing process there is a reference to invoking Section 202 of the Cr.P.C., no inquiry was conducted in proper perspective. In the case of National Bank of Oman (Supra), the Supreme Court has considered the aspect of carrying out such an inquiry as per the said amended provisions of Cr.P.C. The said decision is related to the offences under the Indian Penal Code. In the Judgment of this Court in the case of Netcore Solution Private Limited v. Vinay Rai MANU/DE/0170/2012 : 2012(1)Bom.C.R.(Cri.)788, it was held that the trial Court ought to have postponed the issuance of process in view of the mandatory provisions for inquiry under Section 202 of the Cr.P.C., as the petitioner therein were residents of Mumbai and the proceedings were initiated in the Court at Nagpur. The said decision was however, was related to the offence under Section 138 of Negotiable Instruments Act. This Court in several decisions have consistently taken a view that in the proceedings under Section 138 of the Negotiable Instruments Act, it is not mandatory to hold an inquiry under Section 202 of the Cr.P.C. in the event the accused are residing beyond the jurisdiction of the Court. In any case, it has to be noted that in the present case the trial Court had invoked Section 202 of Cr.P.C. which is apparent from the order issuing process. The Court has recorded the verification statement of the complainant as well as considered the affidavit filed by the complainant and, thereafter, issued the process. In the order issuing process it is observed that the accused being resident of beyond the territorial jurisdiction of the Court, inquiries under Section 202 of Cr.P.C. were held. Complainant filed affidavit in support of allegations made in the complaint and also filed ROC record and after going through the record of the case, the complaint satisfies the requisite ingredients. It is argued that the trial Court has not conducted an inquiry within the purview of Section 202 of the Code of Criminal Procedure. It is pertinent to note that no specific mode of inquiry is provided under Section 202 of Cr.P.C. Apart from that this Court has observed that it is not mandatory to hold such an inquiry in relation to the proceedings under Section 138 of the Negotiable Instruments Act. In Bansilal Kabra v. Global Trade Finance Ltd. MANU/MH/2324/2010 : 2010 ALL MR (Cri) 3168 this Court has held that if Section 202 of Cr.P.C. is made applicable to complaints under Section 138 of Negotiable Instruments Act, it would defeat the very purpose behind enactment of the said provision. The Magistrate can exercise his discretion and decide whether to issue process, dismiss the complaint after recording verification of the complainant and his witnesses, if any, or postpone the issuance of process and in a given case hold further inquiry depending on facts of each case. No compliance would not vitiate the process if there is material to indicate application of mind.
Vijay Tata Ravipati Vs. Mediascope Publicitas (India) Pvt. Ltd. and Ors.
1. The applicant has preferred this application under Section 482 of the Code of Criminal Procedure challenging the proceedings in the criminal complaint lodged by the respondent No. 1 before the Court of Metropolitan Magistrate 33rd Court at Ballard Pier, Mumbai. The proceedings are numbered as CC No. 1194/SS/2015.
"(a) The accused No. 1 is a private limited company of whom accused No. 2 is the authorized signatory and C.F.O. while accused No. 3 is the signatory to the subject cheque. The accused Nos. 4 and 5 are the directors of accused No. 1.
(b) The accused Nos. 2 to 5 are looking after day to day affairs of accused No. 1. Accused Nos. 2, 4 and 5 have dealt with the complainant company in respect to subject transaction of the complaint in terms of consideration aspect. Accused Nos. 2 to 5 in connivance with each other have committed the offence by intentionally dishonouring the subject cheque.
(c) The accused No. 1 through accused Nos. 2, 4 and 5 had approached the complainant company for publication of an advertisement in the news paper for publication of accused No. 1 in the news paper, "KHALEEJ TIMES", Dubai on 20th, 21st, 22nd and 23rd November, 2014.
(d) On instructions from accused No. 1 through accused Nos. 2, 4, and 5, the complainant company have fulfilled their obligations by publishing the advertisement on behalf of accused No. 1 in the news paper "KHALEEJ TIMES", Dubai. The complainant, thereafter, raised the invoices bearing No. 215912 dated 24th November, 2014 for Rs. 6,84,250/-, 215916 dated 24th November, 2014 for Rs. 2,97,500/- and 215918 dated 24th November, 2014 for Rs. 4,16,500/-.
(e) Towards discharge of liability against the aforesaid invoices, the accused issued At Par Cheque bearing No. 138703 dated 13th January, 2015 for Rs. 13,70,286/- drawn on Axis Bank Limited in favour of complainant company.
(f) The complainant presented the aforesaid cheques for encashment with their bankers, viz. BNP Paribas, Mumbai on 24th February, 2015. The said cheque was dishonoured and returned to the complainant along with bank memo with an endorsement "Funds Insufficient".
(g) The complainant issued notice of demand under the Negotiable Instruments Act. The notice dated 25th March, 2015 was dispatched by Registered Post A.D. to the accused. All the accused have received the legal notice on 30th March, 2015.
(h) Inspite of the receipt of notice accused failed and neglected to pay dishonoured cheque amount. Hence, the complaint was filed before the aforesaid Court on 14th May, 2015."
3. On 9th July, 2015, the verification statement was recorded. The affidavit in compliance of Section 202 of Cr.P.C. was filed. On 10th July, 2015 the process was issued against the accused for an offence punishable under Section 138 read with 141 of the Negotiable Instruments Act. It was observed while issuing the process that verification statement of the complainant is recorded. The accused being resident of place beyond the territorial jurisdiction of the Court, inquiry under Section 202 of Cr.P.C. is held. The complaint filed in furtherance of allegations made in the complaint. Since the applicant was not attending the proceedings after service of summons, the complainant preferred an application for issuing proclamation on 18th March, 2016. The learned Magistrate vide order dated 18th March, 2016, issued proclamation against the applicant and accused No. 3.
"(i) The complaint has been filed on incorrect facts such as showing the applicant as the CFO. The applicant is not connected with accused No. 1 company in any manner. He is neither the signatory, nor CFO or director of the respondent No. 1 company.
(ii) The trial Court has mechanically issued process against the applicant. The process was issued on the basis of the statement of the company's authorized representative who has personally not witnessed a single fact and is unable to particularize the role of the accused.
(iii) There are contrary versions with regard to the role of the applicant in the complaint, notice and the verification statement.
(iv) The trial Court has not followed the provisions of Section 202 of the Cr.P.C. in proper perspective. The summoning order does not disclose any application of mind. There is non compliance of the provisions of Section 202 of the Cr.P.C. (as amended), which is mandatory since the applicant is residing out of the jurisdiction of the trial Court.
(v) The applicant does not fall under any category as enumerated under section 138 read with Section 141 of the Negotiable Instruments Act. The applicant cannot be held vicariously liable for the liability of the accused No. 1.
(vi) In the complaint accused No. 2 has been referred to Vijay Murthy and it is alleged that the accused No. 2 is the authorized signatory and C.F.O. of accused No. 1. In the notice issued by the complainant company it is stated that the addressee No. 2 is the signatory to the cheque. In the verification statement, it was stated that accused No. 2 is the signatory to the cheque. It is also stated that as per the instructions from accused No. 1 through accused Nos. 3 and 4, complainant company have published the advertisement in the newspaper "KHALEEJ TIMES", Dubai, in favour of accused No. 1 company. It is submitted that the complainant is not sure about the role of the applicant.
(vii) It is submitted that the applicant is not the signatory to the cheque nor he is C.F.O. or Director of the accused No. 1 company. It is submitted that the applicant has not acted in any manner in the entire transaction.
(viii) It is further submitted that the complaint is filed by Shri Girish Joshi on behalf of the complainant company claiming to be authorised representative of the complainant company. He had no knowledge of the transactions and, therefore, the complaint is not maintainable in law. He is not witness to any transactions, and, therefore, was unable to specify the role of the accused.
(ix) It is further submitted that to invoke the vicarious liability vide Section 141 of the Negotiable Instruments Act, there has to be an averments in the complaint that every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company. The aforesaid provisions also contemplate that where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. It is submitted that there is no requisite averment in the complaint to invoke vicarious liability against the applicant, holding him responsible for the liability of accused No. 1 company.
(x) It is submitted that the applicant is the resident of Bangalore. The complaint is filed at Mumbai. In the order issuing process that there is reference of inquiry being conducted under Section 202 of the Cr.P.C., the same is not conducted within the intent and object of said provisions. There is nothing to indicate that there was application of mind on the part of the trial court for compliance of Section 202 of Cr.P.C.
(xi) There is no material on record to establish that the applicant has played any role in the entire transaction. The order issuing process has been passed in most mechanical manner without application of mind and without ascertaining that the applicant is not liable in any manner for commission of the said offence.
(xii) The trial court has failed to appreciate the provisions of law enunciated in the various decisions of the Hon'ble Supreme Court as well as by this Court.
(xiii) In view of Consent Terms executed between the parties the proclamation ought not to have been issued against the applicant. The complainant cannot rely upon the E-mails in support of complaint. It is, therefore, submitted this Court in exercise of the inherent powers under Section 482 of Cr.P.C. may quash and set aside the proceedings."
(7) Net Core Solutions Pvt. Ltd. v. Pinnacle Teleservices Ltd. MANU/MH/1448/2011 : 2012(3) Mh.L.J. 724"
6. The learned counsel for the respondent No. 1 submitted that there is no substance in the submissions advanced by the advocate for the applicant. The applicant is absconding since long. The trial Court has issued proclamation against him. The applicant has been impleaded as an accused in several complaints filed by respondent No. 1. He has not appeared before the trial Court and initially warrant was issued against the applicant which was followed by proclamation. It is submitted that the complaint makes out prima facie case for issuance of process and thereby the trial Court has issued process against him. It is submitted that in the notice issued to the applicant, role has been attributed to the applicant. In the notice it has been stated that the applicant - accused was looking after day to day affairs of the accused No. 1 company and have dealt with the complainant in respect to subject transaction. It is also stated that he had acted in connivance with the other accused. It is submitted that in the complaint also similar averments are made against the applicant. On the basis of the averments, the verification statement and the affidavit tendered by the complainant, learned Magistrate has issued process against the applicant. It is submitted that the applicant has not been impleaded as an accused in the complaint as director of the accused No. 1, but, as one of the person who was looking after the day to day affairs of accused No. 1. It is, therefore, submitted that sufficient averments to invoke Section 141 of the Negotiable Instruments Act was reflected in the complaint, notice and the verification statement on the basis of which the applicant was summoned by the trial Court. It is further submitted that there is evidence to establish the connivance of the applicant in the subject transaction which led to dishonour of cheque. The evidence includes E-mails exchanged between the parties which are being relied upon by the complainant. It is submitted that the complainant be given an opportunity to lead evidence and prosecute the accused in the said offence. At this stage, there cannot be any adjudication on the contents of the E-mails or its admissibility in evidence.
7. It is further submitted that the complaint is filed by Shri Girish Joshi who is the authorized representative of the complainant-company. In the complaint it has been categorically stated that he has personal knowledge in respect of the facts and this case as well as on the basis of record with the complainant company, he will be able to depose and lead evidence. The complainant has relied upon the resolution passed by the complainant company resolving that the company would initiate legal proceedings under Section 138 of the Negotiable Instruments Act against such parties and for such matters may be deemed necessary and for the said purpose the company authorizes Shri Girish Joshi and others to sign all documents for and on behalf of the company including complaint, suits, verifications, affidavit etc. in connection with any proceedings under Section 138 of the Negotiable Instruments Act. It is submitted that the applicant was instrumental in drawing the consent terms to settle the matter between the parties. The said Consent Terms are annexed to the application. It is submitted that although the applicant is not signatory to the said consent terms, the applicant has participated in the talks of settlement. The applicant has played major role in the transactions and in respect to the issuance of the cheques which were dishonoured. The complainant is relying upon several E-mails which shows the involvement of the applicant. It is the case of the complainant that the applicant and other directors of accused No. 1 company had approached the complainant for publication of advertisement in the news paper "KHALEEJ TIMES" and in pursuant to the instructions from the accused, the complainant had verified its obligation of publishing the advertisement. The accused No. 1 had in all issued 27 cheques which were dishonoured for which 27 separate notices were issued and, thereafter, 27 complaints are filed against the accused including the applicant. The notice was issued to the applicant at the address of the accused No. 1 company addressing him as Mr. Vijay Murthy which has been accepted which shows the connection of the applicant in the said company. It is submitted that the applicant have dealt with the complainant company along with others in respect to subject transactions of the present complaint. It is submitted that several E-mails were exchanged between the parties which shows the connivance of the applicant in the transactions which is the subject matter of the complaint. In the reply filed by respondent No. 1, several such E-mails are placed on record. It is stated that the complainant company had forwarded an E-mail to the applicant informing that the cheques will be presented as per his instructions which E-mail is purportedly replied by the applicant stating that the said cheques can be deposited. Several other Emails are annexed to the said reply which according to the complainant shows involvement of the applicant. Consent Terms are also annexed to the said reply which according to the complainant were approved and finalized by the applicant. The applicant has also annexed the consent terms to the present application as well as the E-mails which were allegedly sent by the complainant to the applicant. Said E-mails have been addressed to the applicant with regard to the booking of the advertisement in the Khaleej Times. According to respondent No. 1, the said documents which are placed on record by the applicant in this application also shows the active involvement of the applicant in the subject transaction. It is, therefore, submitted that the application is devoid of merits and the same may be dismissed.
9. I have perused the documents on record. The complaint was filed through the authorized representative of the respondent No. 1 Shri Girish Joshi. His authorization is supported by the resolution passed by the complainant company. The complaint also specifically mentions that the representative has personal knowledge in respect of the facts of the case as well as on the basis of record with complainant company. The verification statement also mentions that Shri Joshi has been appointed by the complainant company by passing Board Resolution, authorizing him to file complaint and lead evidence against the accused as he knows the facts of the case. In view of the above, there is no infirmity in the filing of the complaint of Shri Girish Joshi as authorized representative of respondent No. 1.
10. In the case of A.C. Narayanan (Supra) relied upon by the counsel for the applicant, the Apex Court has considered the issue relating to filing of complaint under Section 138 of the Negotiable Instruments Act to power of attorney holder or legal representatives. It was also under consideration whether a power of attorney holder can be verified on oath under 200 of the Code and/or whether specific averments as to the knowledge of the power of attorney holder in the transaction must be explicitly asserted in the complaint and whether the power of attorney holder can verify the complaint on oath if he fails to exert explicitly to the knowledge of the complaint on the basis of presumption of knowledge. In paragraph No. 26 of the said decision it is observed that it is an exception to a well-settled position that criminal law can be put in motion by any one and under the statute one stranger to transaction in question, namely, legal heir etc. can also carry forward the pending criminal complaint or initiate the criminal action if the original complainant dies. Keeping in mind various situations like inability as a result of sickness, old age, death or staying abroad of the payee or holder in due course to appear and depose before the Court in order to prove the complaint, it is permissible for the power of attorney holder or for the legal representatives to file a complaint and/or continue with the pending criminal complaint for and on behalf of the payee or holder in due course. However, it is expected that such power of attorney holder or legal representatives shall have knowledge about the transaction in question so as to able to bring on record the truth of the grievance/offence, otherwise no criminal justice could be achieved in case payee or holder in due course is unable to sign, appear or depose as complainant in the aforesaid circumstances. It was observed that filing of complaint under Section 138 of the Negotiable Instruments Act through power of attorney holder is perfectly legal and competent. It is required by the complainant to make specific ascertain as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transaction cannot be examined as a witness in their case. The Apex Court in this decision was primarily considering the effect of complaint filed by the power of attorney and examination of the power of attorney holder in the said proceedings. In the impugned complaint, which has been specifically stated that Shri Girish Joshi is the authorized representative of the complainant company and he has personal knowledge in respect to the facts of this case as well as on the basis of record with the complainant company, he will be able to depose and lead evidence. He was also authorized by the complainant company to file complaint by passing appropriate resolution. This fact was stated in the verification statement as well as the affidavit filed before the Court. In the circumstances, there is no substance in the submissions advanced by the applicant that the complaint through authorized representatives was not maintainable as he has no personal knowledge of the transaction.
11. The other submission advanced by the advocate for the applicant about the contradictions in the complaint, demand notice and verification statement qua the role of applicant in the subject transaction is a matter which can be considered during the trial and the proceedings cannot be quashed on that ground. Learned counsel further contended that the applicant is residing beyond the jurisdiction of the trial Court and, therefore, it was mandatory to conduct an inquiry in accordance with the amended provisions of Section 202 of the Code of Criminal Procedure. It was argued that although in the order issuing process there is a reference to invoking Section 202 of the Cr.P.C., no inquiry was conducted in proper perspective. In the case of National Bank of Oman (Supra), the Supreme Court has considered the aspect of carrying out such an inquiry as per the said amended provisions of Cr.P.C. The said decision is related to the offences under the Indian Penal Code. In the Judgment of this Court in the case of Netcore Solution Private Limited v. Vinay Rai MANU/DE/0170/2012 : 2012(1)Bom.C.R.(Cri.)788, it was held that the trial Court ought to have postponed the issuance of process in view of the mandatory provisions for inquiry under Section 202 of the Cr.P.C., as the petitioner therein were residents of Mumbai and the proceedings were initiated in the Court at Nagpur. The said decision was however, was related to the offence under Section 138 of Negotiable Instruments Act. This Court in several decisions have consistently taken a view that in the proceedings under Section 138 of the Negotiable Instruments Act, it is not mandatory to hold an inquiry under Section 202 of the Cr.P.C. in the event the accused are residing beyond the jurisdiction of the Court. In any case, it has to be noted that in the present case the trial Court had invoked Section 202 of Cr.P.C. which is apparent from the order issuing process. The Court has recorded the verification statement of the complainant as well as considered the affidavit filed by the complainant and, thereafter, issued the process. In the order issuing process it is observed that the accused being resident of beyond the territorial jurisdiction of the Court, inquiries under Section 202 of Cr.P.C. were held. Complainant filed affidavit in support of allegations made in the complaint and also filed ROC record and after going through the record of the case, the complaint satisfies the requisite ingredients. It is argued that the trial Court has not conducted an inquiry within the purview of Section 202 of the Code of Criminal Procedure. It is pertinent to note that no specific mode of inquiry is provided under Section 202 of Cr.P.C. Apart from that this Court has observed that it is not mandatory to hold such an inquiry in relation to the proceedings under Section 138 of the Negotiable Instruments Act. In Bansilal Kabra v. Global Trade Finance Ltd. MANU/MH/2324/2010 : 2010 ALL MR (Cri) 3168 this Court has held that if Section 202 of Cr.P.C. is made applicable to complaints under Section 138 of Negotiable Instruments Act, it would defeat the very purpose behind enactment of the said provision. The Magistrate can exercise his discretion and decide whether to issue process, dismiss the complaint after recording verification of the complainant and his witnesses, if any, or postpone the issuance of process and in a given case hold further inquiry depending on facts of each case. No compliance would not vitiate the process if there is material to indicate application of mind. Similar view was taken in another decision of this Court in Criminal Application No. 716 of 2015, 717 of 2015 and 718 of 2015 (Dr. (Mrs. ) Rajul Ketan Raj v. Reliance Capital Ltd. & Anr. In the said decision, this Court has also taken note of decision in Netcore Solutions Pvt. Ltd. (Supra), relied upon by the advocate for the applicant in this application. The Court also referred to decisions of the Apex Court in the case of Vijay Dhanuka v. Najma Mamitaj MANU/SC/0251/2014 : 2014 ALL MR (Cri) 1924 (SC) and National Bank of Oman's (Supra) case while considering scope of Section 202 of Cr.P.C. qua Section 138 of Negotiable Instruments Act. I am in agreement with the view taken by this Court that the amended provisions of Section 202 of Cr.P.C. referred to above as per Section 138 of Negotiable Instruments Act is only directory.
"What is required is that the persons who are sought to be made criminally liable under Section 141 should be, at the time the offence was committed, in charge of and responsible to the company for the conduct of the business of the company. Every person connected with the company shall not fall within the ambit of the provision. It is only those persons who were in charge of and responsible for the conduct of business of the company at the time of commission of an offence, who will be liable for criminal action. It follows from this that if a director of a company who was not in charge of and was not responsible for the conduct of the business of the company at the relevant time, will not be liable under the provision. The liability arises from being in charge of and responsible for the conduct of business of the company at the relevant time when the offence was committed and not on the basis of merely holding a designation or office in a company. Conversely, a person not holding any office or designation in a company may be liable if he satisfies the main requirement of being in charge of and responsible for the conduct of business of a company at the relevant time. Liability depends on the role one plays in the affairs of a company and not on designation or status. If being a director or manager or secretary was enough to cast criminal liability, the section would have said so. Instead of "every person" the section would have said "every director, manager or secretary in a company is liable"..., etc. The legislature is aware that it is a case of criminal liability which means serious consequences so far as the person sought to be made liable is concerned. Therefore, only persons who can be said to be connected with the commission of a crime at the relevant time have been subjected to action".
"A liability under Section 141 of the Act is sought to be fastened vicariously on a person connected with a company, the principal accused being the company itself. It is a departure from the rule in criminal law against vicarious liability. A clear case should be spelled out in the complaint against the person sought to be made liable. Section 141 of the Act contains the requirements for making a person liable under the said provision. That the respondent falls within the parameters of Section 141 has to be spelled out. A complaint has to be examined by the Magistrate in the first instance on the basis of averments contained therein. If the Magistrate is satisfied that there are averments which bring the case within Section 141, he would issue the process. We have seen that merely being described as a director in a company is not sufficient to satisfy the requirement of Section 141. Even a non-director can be liable under Section 141 of the Act. The averments in the complaint would also serve the purpose that the person sought to be made liable would know what is the case which is alleged against him. This will enable him to meet the case at the trial".
In the light of the aforesaid observations, it will have to be seen that the applicant is one of the person whose is concerned with the day to day affairs of the company. As stated in complaint the applicant is looking after day to day affairs of accused No. 1. He has dealt with complainant company in respect of subject transaction. He has acted in connivance with other in dishonour of cheque. The complainant must be given an opportunity to prove the same by leading the evidence before the trial Court. The proceedings cannot be quashed at the threshold.
13. The other submission of the counsel for the applicant that the E-mails, electronic evidence relied upon by the complainant cannot be considered in view of Section 65B of the Indian Evidence Act, 1872. Reliance was placed on the decision of the Delhi High Court in the case of Facebook India Online Services (Supra). In the said case, the trial was conducted and the issue was relating to how a documents in the electronic form has to be proved in the light of a certificate which is required to be issued by the person/authority in whose custody the device in which the document was stored in an electronic form that the printout generated has been through the device and reflects an information stored in electronic form in the ordinary course or through the testimony of the person who generates the printout from the device in which the same is stored. The stage to appreciate the evidence is yet to come. The trial Court is required to apply its mind while issuing process and the said order cannot be passed mechanically as observed by the Apex Court in the case of M/s. Pepsi Foods Ltd. (Supra) which is relied upon by the advocate for the applicant. On perusal of the order, I do not find any reason to interfere in the order issuing process passed by the trial Court. I have perused the reply filed by the advocate for the complainant and the documents in the form of E-mail being relied upon by the complainant. According to the respondent No. 1 the E-mails were exchanged between the parties which shows the complicity of the applicant in the subject transaction. The said E-mails and its veracity has to be tested in evidence during the course of trial. Prima facie case is made out showing involvement/participation of the applicant in the said transaction. It is pertinent to note that the applicant has annexed some of the E-mails and the copy of consent terms to the application. According to the complainant, applicant is responsible for dishonour of about 27 cheques and several complaints have been filed by the respondent No. 1 in which the applicant is accused and he did not appear before the trial Court, and, hence proclamation has been issued against him declaring him as absconding.
14. In the light of the aforesaid observations, I do not find that the applicant has made out any case for quashing the proceedings by invoking the inherent powers under Section 482 of the Code of Criminal Procedure, and, hence, the petition deserves to be dismissed.
(b) It is clarified that the observations made in this order is for considering the present application and the trial Court shall not be influenced by the observations during the trial."

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Application No. 716
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Mark I. SILVER, Plaintiff-Appellant, v. Dale C. SILVER, Defendant-Respondent.
Before Judges FALL, GRALL and KING.1 Lee M. Hymerling, Haddonfield, argued the cause for appellant (Archer & Greiner, attorneys; Mr. Hymerling and Timothy P. Haggerty, on the brief). Amy R. Weintrob, Fort Lauderdale, FL, argued the cause for respondent (Jacobs & Barbone, attorneys; Ms. Weintrob, on the brief).
Plaintiff Mark I. Silver appeals from an order entered in the Family Part on January 5, 2005, dismissing his domestic violence complaint that he had filed against defendant Dale C. Silver pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The following factual and procedural history is relevant to our consideration of the issues presented on appeal.
The parties were married on September 12, 1987. Two children were born of their marriage: J, on August 27, 1989; and J, on March 5, 1997. The parties separated in or about September 2003.
On March 9, 2004, plaintiff filed a complaint for divorce against defendant in the Family Part, Camden County, seeking, inter alia, a judgment dissolving their marriage, and awarding him sole custody of the children. At that point, J was primarily residing with plaintiff, and J was primarily residing with defendant.
6. This Order is entered by both parties without prejudice to any positions that he/she may take in connection with the applications scheduled to be heard on August 6, 2004 and this litigation in general. Both parties are entering into this Order to avoid the filing of cross Orders to Show Cause to allow the issues to be more fully explored by the Court at the time of the August 6, 2004 hearing. This Order does not constitute a finding by the Court nor an admission by either party.
On 7-27-04 the victim and defendant got into an argument over a custody order. Both parties have visible injuries after a physical confrontation.
Both complaints stated there was no prior history of domestic violence, and that criminal complaints had been filed against both parties charging them with simple assault, N.J.S.A. 2C:12-1a(1).
The municipal court judge issued a temporary restraining order (TRO) on each complaint, and scheduled a final hearing in the Family Part, Atlantic County, for August 5, 2004. Both parties gave written statements to the police that contained conflicting versions of the incident. However, the parties agreed that the dispute between them centered over the supervised-visitation portions of the July 27 consent order that had been issued in the matrimonial action.
On August 5, 2004, the Family Part, Atlantic County, issued a consent order in the domestic violence actions, continuing the restraints contained in the July 27, 2004 TROs, without prejudice; incorporating additional restraints, essentially as contained in the July 27, 2004 matrimonial order; and setting forth additional specific supervised parenting time for defendant with J.
On August 27, 2004, an order was entered in the matrimonial action, transferring the domestic violence complaints to the Family Part in Camden County, and scheduling a final hearing. That order also dealt with the issues of supervised parenting time, discovery, and non-dissipation of marital assets.
A final hearing on both domestic violence complaints was conducted in the Family Part on January 5, 2005. Defendant testified that on the evening of July 27, 2004, she drove, with her girlfriend Nancy Forrester, to the Warwick Condominiums in Atlantic City to pick up J for the parenting-time session scheduled to commence at 4:15 p.m. She stated that her parents, who were to serve as supervisors, were on their way to Margate to pick up J from camp, and they were all to rendezvous later on the Atlantic City boardwalk.
Defendant testified she was waiting in her parked car in front of the Warwick Condominiums, when plaintiff drove up with J. She stated that J exited plaintiff's vehicle, and plaintiff inquired as to J's whereabouts, stating that he wanted to have dinner with J that night; defendant explained that J had declined the dinner invitation.
Plaintiff then entered his vehicle and left, leaving J with defendant and Forrester. Defendant and Forrester then brought J up onto the boardwalk where they sat on a bench to wait for defendant's parents and J.
He started dialing, then when he finished dialing he looked at me, he was very angry and he raised his hand and I thought he was going to hit me, coming at me. I put my hands up to block him and he put his hand on my neck and started choking me.
Defendant stated that during the altercation “he also bit me on my finger and on my arm, but that was later.” Defendant admitted she slapped and scratched plaintiff during the altercation, but asserted she did so to defend herself. She also stated that she had not entered plaintiff's vehicle with the intent to assault him.
A tape of the 9-1-1 calls by the manager of Warwick Condominiums and by plaintiff to the 9-1-1 operator was played in court, and we have been provided a copy of the 9-1-1 tape of the calls and a transcript thereof.
In his testimony, plaintiff provided a markedly different version of the incident. He stated that after he had dropped off J, he telephoned his friend, Barbara Frank, who reminded him that defendant's parents were required to supervise defendant's parenting-time sessions. At that point, he turned his car around and went back. He stated that on his way back, he called defendant and told her he “was coming back and that [he] would wait for her parents to show up[,]” but that defendant responded, “I can't hear you, I can't hear you and she hung up.” Plaintiff drove up near the boardwalk and waited in the car.
Shortly thereafter, defendant walked up to his car, “opened the door and jumped in the car and her back was to the passenger's side and she started-she started beating the heck out of me.” He explained that as defendant was walking toward the vehicle, he had been talking on the cell phone with Barbara Frank. Plaintiff stated that defendant kept scratching him and trying to put her hands over his mouth to prevent him from talking on the phone. He testified that at that point he dialed 9-1-1, and, when he was able to get out of the car, ran into the Warwick Condominiums and asked the manager to call the police. Plaintiff denied choking or hitting defendant.
I was going to check and put down about the prior incidents. As I was filling out those forms I had paramedics all over me and I was going to the hospital.
The next day after contacting [my attorney] I was told that I could amend that and based upon that I believe [my attorney] moved to amend that statement of “no” and that was done right after I signed that. It was a mistake and I can tell you my blood pressure was significantly high and I was advised to go to the hospital.
Barbara Frank testified that she had a telephone conversation with plaintiff shortly after 4:10 p.m. on July 17, 2004, after plaintiff had dropped off J, during which she reminded him that defendant's parents were required to be present during her parenting time. Plaintiff then told Frank he was going back to wait for defendant's parents, and the conversation terminated. Frank stated that plaintiff then called her back and explained that he had tried to call defendant, but she was unable to hear him on the cell phone.
[W]hat's clear is that there is a substantial amount of acrimony between the parties. Their relationship isn't working out, they're in the process of seeking a divorce, they have retained on the civil side counsel in substantial firms who are working to resolve issues between them and specifically with regard to the incident that precipitated this occurrence the notion of the visitation and supervised visitation.
The-the impetus for this event which occurred on July 27 had to do with a mother's desire to visit with the child, a father's concern for the well being of the child, and the existence of a prior court order which determined the boundaries and parameters of those visitations.
[E]ach party checked the boxes that said there had been no prior acts of domestic violence. And today at trial they each testified that the other had either threatened them or pulled a knife on them or done improper things․ I both believe and disbelieve each party as to those allegations to the same extent, but find that if there's something there, that it is a continuing disagreement between them perhaps because where they found themselves in their relationships was not where they had expected to be. One child is with the father, one child is with the mother. Both children need a relationship with each parent.
I believe [defendant] got in the car without being invited. She's a bright woman, she suffered a memory lapse at the question of how'd she get in the car. I don't think she was invited into the car. But I think there's so much volatility and rage between these people that the emotional filters they utilize to listen to the language betrays the true meaning of the words that they speak to one another.
[Defendant] assaulted [plaintiff], she scratched him, she punched him, that's clear. She also, in the court's opinion, forced herself into the car, or committed an act of defiant trespass by not leaving the car when she was told to leave the car, and if in fact she was being choked she would have called 9-1-1.
Likewise, there's a question about at what point he got scratched and assaulted, because he didn't say, “She scratched me, she hit me,” he said, “She won't get out of the car.” They both were very emotional.
I can't find, even by a preponderance of the evidence-a preponderance of the credible evidence, that [plaintiff] choked or assaulted [defendant]. I can find by a preponderance of the evidence that [defendant] did assault and did refuse to leave [plaintiff's] presence. The difficulty is that [plaintiff's] description ․ of the events surrounding why it happened just doesn't jive with what happened, with what the testimony shows.
However, I don't believe that either party intended for the outcome to have been the outcome. I don't believe that [defendant] walked over to the car intending to beat up [plaintiff]. And I don't believe that [plaintiff], had [defendant] not gotten into the car, would have done anything to her. I believe he was genuinely making sure that his child was okay, and I think that whatever triggered the difficulty between the parties was situational and not intentional.
I'm guided by Corrente[ v. Corrente, 281 N.J.Super. 243, 657 A.2d 440 (App.Div.1995) ] because the entry of a final restraining order in a domestic violence case has tremendous consequences for the parties against whom it's entered. And domestic violence is a term of art as Corrente says which describes a pattern of abuse and a pattern of controlling behavior, and we don't have that here.
I don't think we have domestic contretemps, I think we have domestic stupidity, I think we have domestic distress, domestic unhappiness, domestic frustration, domestic panic. I believe [plaintiff] genuinely is concerned about the well being of his children. And I believe [defendant] clearly is working on healing those things that are frustrating her and too was concerned about the well being of her children. But the question here is whether this is a pattern of a relationship, are these people controlling each other, manipulating each other through the use of threats, through the use of physical force, through the use of-of other forms of abuse. And on the basis of the testimony presented to me I don't find that that is the case.
I do find there was a defiant trespass,2 I do find there was an assault, I do find that there was ․ an unwelcome touching, but ․ there were not contrapuntal acts of domestic violence on the basis of Corrente and Cesare[ v. Cesare, 154 N.J. 394, 713 A.2d 390 (1998) ] which tells me to look at the pattern even more carefully and even if this particular event was-was minimal, if the minimal events have accumulated over many years then I should find an act of domestic violence; I don't find there was an act of domestic violence here.
THE FAMILY PART COMMITTED ERROR BY CONCLUDING THAT CORRENTE AND CESARE MANDATED DISMISSAL OF MR. SILVER'S COMPLAINT NOTWITHSTANDING THE FAMILY PART'S FINDING THAT MRS. SILVER HAD COMMITTED ASSAULT AND TRESPASS. THE FAMILY PART'S CONCLUSION WAS AGAINST THE WEIGHT OF THE EVIDENCE AND MISAPPLIED APPLICABLE LAW.
MRS. SILVER'S CONDUCT WAS NOT AMBIGUOUS AND CONSTITUTED AN EGREGIOUS ACT OF DOMESTIC VIOLENCE MADE EVEN THAT MUCH WORSE BECAUSE AT A TIME AT OR SURROUNDING PARENTING TIME WHEN THE PARTIES' SON J WAS NEARBY.
THE PENDENCY OF SIMULTANEOUS DIVORCE PROCEEDINGS DOES NOT NEGATE THE IMPORTANCE OF AFFORDING DOMESTIC VIOLENCE PROTECTIONS WHEN JUSTIFIED BY THE RECORD.
IT IS NEVER A REASON TO DENY A FINDING OF DOMESTIC VIOLENCE WHEN THE FINDING IS SUPPORTED BY THE RECORD SIMPLY BECAUSE THE CONSEQUENCE OF THE VIOLATION OF THE ACT TO THE OFFENDING PARTY MAY BE SEVERE. THE FOCUS MUST BE UPON THE PROTECTION OF THE VICTIM.
THE TRIAL COURT ERRED BY FAILING TO GRANT WEIGHT TO THE COURSE OF PRIOR CONDUCT.
(12) Criminal trespass․ N.J.S. 2C:18-3.
In Kamen v. Egan, 322 N.J.Super. 222, 224-25, 730 A.2d 873 (App.Div.1999), the plaintiff had filed a complaint against the defendant, his daughter, under the PDVA seeking a restraining order based on a single act of trespass, unaccompanied by a violent act or threat thereof. The daughter had supervised visitation with her children in the home of plaintiff, who was the legal custodian of his grandchildren. Id. at 225, 730 A.2d 873. Defendant had appeared at plaintiff's house for visitation with her children on an unscheduled date, and at a time when the plaintiff was not at home. Ibid. When asked to leave three times by her stepmother defendant refused, stating she wanted to see her children. Ibid. When her stepmother threatened to call the police, defendant left. Ibid. The plaintiff then filed a domestic violence complaint against his daughter, founded on the predicate act of criminal trespass. Ibid.
It is clear that the Legislature did not intend that the commission of any one of these acts [contained in N.J.S.A. 2C:25-19a] automatically mandates the issuance of a domestic violence order. Corrente, supra, 281 N.J.Super. at 248, 657 A.2d 440; Peranio[ v. Peranio, 280 N.J.Super. 47, 54, 654 A.2d 495 (App.Div.1995)]. Domestic violence is ordinarily more than an isolated aberrant non-violent act. Indeed, the Act mandates that the court, in determining whether an act of domestic violence has occurred, consider the previous history of domestic violence between the parties including threats, harassment and physical abuse, N.J.S.A. 2C:25-29(a)(1), and the existence of immediate danger to person or property, N.J.S.A. 2C:25-29(a)(2). See Cesare v. Cesare, 154 N.J. 394, 402, 713 A.2d 390 (1998). While a single sufficiently egregious action may constitute domestic violence even if there is no history of abuse between the parties, a court may also determine that an ambiguous incident qualifies as domestic violence based on finding previous acts of violence. Ibid.
The Act is intended to assist those who are truly the victims of domestic violence. It should not be trivialized by its misuse in situations which do not involve violence or threats of violence. In addition, we have previously expressed our concern that the Act may be misused in order to gain advantage in a companion matrimonial action or custody or visitation issue. See N.B. v. T.B., 297 N.J.Super. 35, 42, 687 A.2d 766 (App.Div.1997); Murray v. Murray, 267 N.J.Super. 406, 410, 631 A.2d 984 (App.Div.1993). We note that while the complaints that are the subject of this appeal were pending, there was also a custody and/or visitation proceeding pending.
Here, of course, at the time the subject domestic violence complaint was filed, the parties were engaged in matrimonial litigation involving, inter alia, hotly contested issues of custody and supervised parenting time.
In Corrente, supra, the plaintiff had filed a domestic violence complaint against her estranged husband, alleging an act of harassment, and contending that he had called her at work and threatened “drastic measures if plaintiff did not supply defendant with money to pay bills.” 281 N.J.Super. at 244-45, 657 A.2d 440. He subsequently had the phone turned off. No previous history of domestic violence had been alleged. Ibid.
that acts claimed by a plaintiff to be domestic violence must be evaluated in light of the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment and physical abuse and in light of whether immediate danger to the person or property is present. N.J.S.A. 2C:25-29a(1) and (2). This requirement reflects the reality that domestic violence is ordinarily more than an isolated aberrant act and incorporates the legislative intent to provide a vehicle to protect victims whose safety is threatened.
The domestic violence law was intended to address matters of consequence, not ordinary domestic contretemps such as this. We conclude that on plaintiff's puny proofs, the domestic violence order was unwarranted.
Likewise, in Peranio, supra, we reversed entry of a domestic violence restraining order because there was no finding by the trial court that the defendant had uttered the statement, “I'll bury you,” to the plaintiff with the purpose to harass her, nor was there a course or repeated acts of alarming conduct. 280 N.J.Super. at 55, 654 A.2d 495.
We view the task of a judge considering a domestic violence complaint, where the jurisdictional requirements have otherwise been met, to be two-fold.
First, the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a has occurred. See N.J.S.A. 2C:25-29a (stating that “the standard for proving the allegations in the complaint shall be by a preponderance of the evidence”). In performing that function, “the Act does require that ‘acts claimed by a plaintiff to be domestic violence ․ be evaluated in light of the previous history of violence between the parties.’ ” Cesare, supra, 154 N.J. at 402, 713 A.2d 390 (quoting Peranio, supra, 280 N.J.Super. at 54, 654 A.2d 495). Stated differently, when determining whether a restraining order should be issued based on an act of assault or, for that matter, any of the predicate acts, the court must consider the evidence in light of whether there is a previous history of domestic violence, and whether there exists immediate danger to person or property. See N.J.S.A. 2C:25-29a(1) and (2).
Here, the trial judge found that defendant had committed an act of assault against plaintiff, as well as an act of criminal trespass. Indeed, the record reflects that plaintiff was scratched and was bleeding to the extent that he required medical attention.3 Although the trial court permitted testimony from both parties concerning prior allegations of acts of domestic violence-which included purported threats by defendant to use a knife against plaintiff-the finding by the judge that he “both believe[d] and disbelieve[d] each party as to those allegations to the same extent” is not clear. In other words, we cannot discern from this record which of the prior alleged acts of domestic violence the court found had occurred, if any. However, the trial judge did find, by a preponderance of the evidence, that defendant had committed acts of assault and criminal trespass against plaintiff; thereby, defendant had committed acts of “domestic violence,” as defined by N.J.S.A. 2C:25-19a.
The second inquiry, upon a finding of the commission of a predicate act of domestic violence, is whether the court should enter a restraining order that provides protection for the victim.4 As we noted in Kamen, supra, the Legislature did not intend that the commission of one of the enumerated predicate acts of domestic violence automatically mandates the entry of a domestic violence restraining order. 322 N.J.Super. at 227, 730 A.2d 873. See also Corrente, supra, 281 N.J.Super. at 248, 657 A.2d 440; Peranio, supra, 280 N.J.Super. at 54, 654 A.2d 495.
In Kamen, supra, for example, although the predicate act of trespass had occurred, we concluded that a domestic violence restraining order was not warranted because the trespass was “unaccompanied by violence or a threat of violence[.]” 322 N.J.Super. at 228, 730 A.2d 873. Here, in contrast, the act of trespass was accompanied by an act of violence in the form of an assault.
This second inquiry, therefore, begins after the plaintiff has established, by a preponderance of the evidence, the commission of one of the enumerated predicate acts “upon a person protected under this act by an adult or an emancipated minor[.]” N.J.S.A. 2C:25-19a. Although this second determination-whether a domestic violence restraining order should be issued-is most often perfunctory and self-evident, the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29a(1) to -29a(6), to protect the victim from an immediate danger or to prevent further abuse. See N.J.S.A. 2C:25-29b (stating that “[i]n proceedings in which complaints for restraining orders have been filed, the court shall grant any relief necessary to prevent further abuse ”) (Emphasis added).
In Kamen, supra, since there was no act of violence or threat thereof, we found no need or basis for entry of a domestic violence restraining order because there was no immediate danger to the plaintiff and the order was not necessary to prevent further abuse. 322 N.J.Super. at 228, 730 A.2d 873. Here, the record does not necessarily support such a finding. On the one hand, the judge found there was “volatility and rage” and a “substantial amount of acrimony” between the parties, and that plaintiff had committed an act of assault against plaintiff that necessitated medical treatment, as well as a trespass. On the other hand, the judge found “that whatever triggered the difficulty between the parties was situational and not intentional.” However, the judge declined to characterize the incident as matrimonial contretemps.
Although it is clear that a pattern of abusive and controlling behavior is a classic characteristic of domestic violence, see Cesare, supra, 154 N.J. at 397-98, 713 A.2d 390, the need for an order of protection upon the commission of a predicate act of “domestic violence,” as specifically defined in N.J.S.A. 2C:25-19a, may arise even in the absence of such a pattern where there is “one sufficiently egregious action[.]” Id. at 402, 713 A.2d 390.
Therefore, we are constrained to vacate the order dismissing plaintiff's domestic violence complaint, reinstate the TRO, and remand the matter for a further hearing that focuses on this second step in the analysis. Specifically, having found that defendant committed the predicate act of assault-an act of violence-and an act of criminal trespass, and given the findings of an acrimonious relationship, manifested by volatility and rage, the trial court should determine whether a domestic violence restraining order is necessary to protect plaintiff from immediate danger or further acts of domestic violence. In that connection, the court should consider and make specific findings on the previous history of domestic violence, if any, between the plaintiff and defendant, and how that impacts, if at all, on the issue of whether a restraining order should issue.
The order of dismissal is reversed, the TRO reinstated, and the matter is remanded for further proceedings consistent with this opinion.
2. We note that plaintiff's complaint did not allege acts of domestic violence based on the cause of action of “trespass.” However, there has been no cross-appeal from that finding.
3. Photographs of plaintiff's appearance following the incident were marked into evidence at the January 5, 2005 hearing but have not been included in the record on appeal.
4. The term “victim of domestic violence” is defined by N.J.S.A. 2C:25-19d as a person protected under the act who has been subjected to domestic violence by, inter alia, a spouse.

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