The court established that compliance with Section 202 of the Criminal Procedure Code is mandatory when the accused resides outside the jurisdiction of the Magistrate, and failure to conduct an inquiry or provide reasons for not doing so invalidates the issuance of process under Section 138 of the Negotiable Instrument Act.

ORDER :

1. This group of Writ Petitions is clubbed together for hearing, since it raises common question of law and facts. It arises out of the complaints instituted under Section 138 of the Negotiable Instrument Act by respective respondents against the petitioner. The petitioner raises challenge to the order of issuance of process passed by the Judicial Magistrate First Class, Jalgaon, so also the order of the Sessions Court passed in Revision, thereby confirming the order of Magistrate.

2. In nutshell, the complaints are fled with contention that the respondent is in the business of selling gold and silver ornaments and runs his business in the name and style as “Ekveera Jewellers Anturli”. In pursuance of the said business, the petitioner had floated a scheme by which on investment of certain amount for more than two years, the interest at the rate of 1.25% per month was offered. On expiry of two years locking period, the investor was entitled to receive his deposited amount alongwith interest or gold of equal amount. The complainants participated in the scheme and deposited the amount. In lieu of the aforesaid deposits, the petitioner issued cheques, however, on presentation, dishonored with endorsement “payment stopped by drawers”. The respondent issued demand notice, which has been duly served upon the petitioner. However, he failed to comply the notice by giving false reply, as such complaint has been fled.

3. On presentation of the complaints, the learned Magistrate passed the order below Exhibit-1, which reads thus:

“Heard the learned Advocate for the complainant. Read the complaint and perused the documents. The complaint is made for offence punishable under Section 138 of the Negotiable Instrument Act. The complainant complied all things which are mandatory under the Negotiable Instrument Act. The offence punishable under Section 138 of the Negotiable Instrument Act has been specifically made out in the complaint. Hence, I pass the following order

ORDER

Issue process for the offence punishable under Section 138 of the Negotiable Instrument Act against the accused.”

4. The petitioner aggrieved by aforesaid order fled Criminal Revision Application under Section 397 of the Criminal Procedure Code before Sessions Judge, Jalgaon raising multifarious challenge. The learned Sessions Judge dismissed the Revision Application. Hence, the petitioner fled present Criminal Writ Petitions.

5. Mrs. Rashmi Kulkarni, learned Advocate alongwith Ms. Namita Thole and Rohit Dhongde, learned Advocates appearing for the petitioner submits that although there are several grounds for challenge she would restrict submissions on the crucial issue which goes to the root of the matter. She would contend that the petitioner resides at Anturli, Tq. Muktainagar, Dist. Jalgaon i.e. beyond jurisdiction of the Magistrate at Jalgaon. The complaint has been instituted in the Court Judicial Magistrate First Class at Jalgaon. However, while passing the impugned order of issuance of process, the mandate under Section 202 of the Criminal Procedure Code is not observed. By inviting attention of this Court to the contents of impugned order she would contend that neither enquiry appears to have been carried by the Magistrate nor reasons are recorded to dispense with such inquiry mandated before issuance of process. On this count only the impugned order deserves to be quashed and set aside. She would further submit that the learned Magistrate as well as the Court of Sessions ignored the mandate of law requiring enquiry before issuance of process in case accused resides beyond territorial jurisdiction of the Magistrate. To buttress her contentions she would rely upon the judgment of this Court in case of Shivshankar Shrikushna Dhole Vs. State of Maharashtra and Ors. : 2021 ALL MR (Cri.) 3409, Sayed Mohammed Omair Sayed Ibrahim and Others Vs. State of Maharashtra and Others : 2022 All M.R. (Cri.) 3310, unreported judgment of this Court in the matter of Dr. Anita Patil