The enquiry under Section 202 of the Code of Criminal Procedure is not mandatory in proceedings under Section 138 of the Negotiable Instruments Act.

PRAKASH D. NAIK, J.

1. The petitioner has invoked the supervisory jurisdiction, under Article 227 of the Constitution of India and challenged the Judgment and order dated 6th May, 2017, passed by the Learned Additional Sessions, Judge, Aurangabad in Criminal Revision Petition No. 84 of 2017, confirming the order dated 16th November, 2016, passed by Judicial Magistrate, First Class, Aurangabad in Summery Criminal Case No. 8509 of 2016.

2. The factual matrix of the matter is as under:

(a) Respondent No. 1 filed a complaint viz. Summary Criminal Case No. 8509 of 2016, before the Court of Judicial Magistrate, First Class, Aurangabad. In the complaint, it was alleged that in the year 2014, the accused requested the complainant to start a business of Tours and Travels and Money Exchange in partnership at Aurangabad and demanded Rupees Ten Lakhs with understanding that partnership deed will be executed in between him and the complainant. Accordingly, complainant paid Rupees Ten lakhs to the accused.

(b) On the pretext of taking franchisee of Heena Tours, accused again demanded an amount of Rupees Ten Lakhs towards deposit to Heena Tours. Relying on the assurance, the complainant paid an amount of Rupees Ten Lakhs to the accused on second occasion. Thereafter, again on pretext of bulky booking in tours and travels took Rupees Four Lakhs from the complainant with assurance to return it within fifteen days. It is further alleged that the accused issued cheque of Rs. 20,00,000/- (Rupees Twenty Lakhs) as part payment out of Rs. 30,00,000/- (Rupees Thirty lakhs) given by the complainant to the accused and Rs. 6,00,000/- (Rupees Six Lakhs) as benefit of her share out of joint business of Tours and Travels.

(c) The complainant presented three cheques for its realization, which were returned unpaid on the ground that funds were insufficient and Account Closed. Demand notice was issued by the complainant on 9th September, 2016. On failure to make the payment, the complainant filed the complaint on 25.10.2016 for the offence punishable under Section 138 of the Negotiable Instruments Act.

3. The trial Court vide order dated 16th November, 2016, issued process against the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act.

4. The petitioner challenged the aforesaid order by preferring Criminal Revision Petition No. 84 of 2017, before the Court of learned Additional Sessions Judge, Aurangabad on 1st April, 2017. The said Revision Application was rejected vide order dated 6th May, 2017.

5. The learned Advocate for the petitioner challenged the proceeding on the sole ground that before issuing process, the learned Magistrate failed to follow mandatory provisions of Section 202 of the Code of Criminal Procedure. It is submitted that accused was resident of Nashik and the complaint is filed in the Court of Judicial Magistrate, First Class, Aurangabad. Since the accused was residing beyond the jurisdiction of the trial Court, it was mandatory for the Court to conduct enquiry under Section 202 of the Code of Criminal Procedure. It is submitted that on account of failure to take recourse to Section 202 of the Code of Criminal Procedure, which was mandatory, the order issuing process passed by the Trial Court is bad in law and deserves to be quashed and set-aside. It is submitted that, the trial Court as well as Sessions Court have failed to appreciate the provisions of Section 202 of the Code of Criminal Procedure and erroneously passed the impugned orders.

6. Respondent No. 1 is the complainant in the impugned complaint. On account of discharge of alleged liability, the cheques were issued by the accused, which were dishonoured. The learned Judicial Magistrate, First Class, issued the process on 16th November, 2016. While passing the said order, the said Court has observed that, on perusal of the complaint, verification statement and the documents, prima-facie case is made out against the accused for the offence p