U.D. Salvi, J.

1. Rule. Rule made returnable forthwith. Taken up for final hearing by consent of parties.

2. Heard. Perused.

3. Issuance of process under Sections 418 and 420 of the Indian Penal Code, 1860 by learned Chief Judicial Magistrate, Ahmednagar in Criminal Case No.R.T.C.260/2007 is questioned in the present criminal application.

4. The respondent No.1 – National Bank of Oman, registered at Oman, lodged a private complaint (originally numbered as 259/2007 and later on renumbered as R.T.C. No.260/2007) in the Court of the Chief Judicial Magistrate, Ahmednagar against the petitioner, a resident of District Dakshin Kannada, Karnataka, alleging its cheating resulting in swindling of 43,15,000/-U.A.E. Dirhams, equivalent to 5.178 Crores Indian Rupees at Abu Dhabi (United Arab Emirates).

5. Gist of the complaint is as under –

In the year 1995, the applicant/ accused 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 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 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 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 time 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 order 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 undertakings that said cheques would be honoured and loan would be repaid as per the restructuring agreement between the parties and thereby induced the Bank not to take immediate action and obtain detention order. The complainant relied upon the said representation and did not take action against the accused in November 2002. The said cheques were dishonoured for want of sufficient funds in the account of the accused and in meanwhile the accused surreptitiously and clandestinely absconded to India without discharging his loan liability.

6. Challenge to the impugned order is based on the following grounds:-

(i) The allegations made in the complaint and as revealed in the verification, even taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case for issuance of process under Sections 418 and 420 of the Indian Penal Code, 1860.

(ii) The respondent/ accused is residing outside the jurisdiction of Chief Judicial Magistrate, Ahmednagar and yet the process was issued without complying with the mandatory requirements of making an enquiry or directing an investigation for the purpose of deciding whether or not there is sufficient ground for proceeding as contemplated