Compliance under Sec. 202 of the Code of Criminal Procedure, when the accused is residing beyond the jurisdiction of the Magistrate, is mandatory.

JUDGMENT

1. The writ petitioners are the original accused praying for writ of certiorari, order or direction for calling the record and proceedings of the respective cases and after examining the legality, validity and propriety of those proceedings, have prayed for quashing and setting aside the proceedings. The petitioner in Criminal Writ Petition No.473 of 2021 is facing trial in S.C.C. No.223 of 2019, the petitioner in Writ Petition No.481 of 2021 is facing trial in S.C.C. No.222 of 2019 and the petitioner in Writ Petition No.483 of 2021 is facing trial in S.C.C. No.221 of 2019 before learned Judicial Magistrate First Class, Washi, Tq. Washi, Dist. Osmanabad filed by respondent No.2 in each case against them for the offence punishable under Sec. 138 of the Negotiable Instruments Act.

2. Heard learned Advocate Mr. A. N. Nagargoje for the petitioners in all the cases, learned APP Mr. R. B. Bagul for respondent No.1 - State in all the cases and learned Advocate Mr. K. F. Shingare for respondent No.2 in all the cases.

3. It has been vehemently submitted on behalf of the petitioners that the respondent No.2, in his complaint, contended that the petitioners had induced him for purchasing flat at Hyderabad. Petitioners being the builder, brother of the builder and father of the builder had entered into an agreement to sell. It was decided that the consideration would be Rs.31,00,000.00 and out of that he had paid Rs.22,50,000.00 by 22/4/2017, then he says that instead of selling the said flat to him, it was sold to some third person on 29/6/2018. Legal notice was issued by him and thereafter, an agreement came to be arrived at. It is contended by the petitioners that certain amounts were paid and out of the amount that was paid by respondent No.2, only balance of Rs.8,50,000.00 was remaining. According to the petitioners, they have made certain payments and in order to prove the same, they have produced on record the documents. Cheques were given as security and it was then agreed by the respondent No.2 that after he receives the amount in cash, he will not deposit the same and also withdraw the cases which he had filed. That compromise has been produced before this Court. Even in complaint, the complainant admits that there was an agreement. If he himself had come with that case, then he will not dispute the documents, which have been produced on record. He had no authority to deposit those cheques for encashment. Still, he deposited and the cheque amount in S.C.C. No.223 of 2021 is Rs.31,00,000.00, in S.C.C. No.222 of 2021 it was Rs.10,00,000.00 and in S.C.C. No.221 of 2019 it was Rs.10,00,000.00. This is, in fact, more than what he is said to have paid towards the agreement to sell and, therefore, the proceedings itself need to be quashed.

4. The learned Advocate for the petitioners further submitted that though it is not pleaded specifically, yet when the legality and validity of the proceeding includes the order of issuance of process against the petitioners, then it can be still argued by him that the order of issuance of process passed by the learned Judicial Magistrate First Class, Washi on 20/11/2019 suffers from legality in view of the fact that the accused in respective cases are resident of Hyderabad, which is beyond the jurisdiction of the learned Judicial Magistrate First Class, Washi. Therefore, there is no compliance of Sec. 202 of the Code of Criminal Procedure by the concerned Court. A routine order cannot be passed when a specific provision is made for holding an inquiry in respect of the accused persons, who are residing beyond the jurisdiction of a Magistrate. Mere perusal of the contents of the complaint and documents under those circumstances cannot amount to the necessary compliance. He relied on the decision in Suo Motu Writ Petition (Crl.) No.2 of 2020, [AIR 2021 SC 1957], wherein it has been held that :- 10. Sec. 202 of the Code confers jurisdiction on the Magistrate to conduct an inquiry for the purpose