IMPORTANT POINT
Independent causes of action for dishonoured cheques can lead to multiple complaints under Sec. 138 of the Negotiable Instruments Act, and the necessity of an inquiry under Sec. 202 is contingent upon the sufficiency of prima facie evidence.

JUDGMENT/ORDER

1. Challenge in this petition is to the order dtd. 3/4/2019 passed in a proceedings under Sec. 138 of the Negotiable Instruments Act, 1881.

2. The respondent No.1 filed a complaint under Sec. 138 of the Negotiable Instruments Act, 1881 contending that the accused No.1/Company through accused No.2 and with knowledge and consent of accused no.3 approached the complainant with request for short term financial facility of Rs.1,50,00,000.00. Accordingly, the complainant disbursed loan of Rs.1,50,00,000.00. The accused No.2 executed demand promissory note in favour of the complainant acknowledging disbursement of amount. Thereafter, the accused No.1 approached the complainant for renewal cum enhancement of existing facility of Rs.50,00,000.00 which was sanctioned on 26/5/2017. Therefore, total loan disbursed in favour of the accused was to the tune of Rs.2,00,00,000.00. Towards satisfaction of the said legally enforceable liability, accused No.1 issued cheque of Rs.1,61,48,178.00 which was dishonoured. After following procedure as required under Sec. 138 of the Negotiable Instrument Act, 1881, the complaint was filed on 23/8/2018.

3. By order dtd. 3/4/2019, the learned Magistrate issued process against the petitioners. While issuing process, it appears that the learned Magistrate has considered complaint along with affidavit of verification. Based on satisfaction that accused Nos.2 and 3 are partners of accused no.1/Company, and ingredients of sec. 138 are complied with, the learned Magistrate issued process against the petitioners for offence under Sec. 138 read with Sec. 141 of the Negotiable Instruments Act, 1881. Challenge to the said order is made by present petition.

4. Learned advocate for the petitioners submitted that based on same transaction and one agreement, the complainant has filed two complaints for dishonour of two different cheques. Paragraph Nos.2 to 7 of both the complaints are identical. Since both the complaints arise out of identical transaction, the complaints are not maintainable.

5. I have considered the submissions made on behalf of the petitioners. No provision of law or any precedent is pointed out in support of his submission that filing of complaint based on one agreement and one transaction, independent dishonour of cheque is not maintainable. Considering scheme of Sec. 138 of the Negotiable Instruments Act, 1881, independent cause of action gives rise to filing of independent complaint. If the court is satisfied that the ingredients of Sec. 138 are fulfilled, the learned Magistrate is entitled to issue process.

6. The next submission is that initial loan was Rs.1,50,00,000.00 and the cheques issued which are subject matter of two complaints are of Rs.1,61,48,178.00 and Rs.1,56,07,312.00, demonstrate that there is no legally recoverable liability. The said submission is in ignorance of paragraph 7 of the complaint which states that in addition to Rs.1,50,00,000.00, amount of Rs.50,00,000.00 was sanctioned to the complainant. The factum as to whether the total amount of cheque is legally recoverable or not is purely question of facts. At the stage of issuance of process, unless there is unimpeachable document on record which shows that the amount sought to be enforced on the face of it is not legally recoverable, the submission of the petitioners cannot be accepted.

7. The next ground urged by the petitioners is that the petitioners are residing outside territorial jurisdiction of the Magistrate and inquiry under Sec. 202 is mandatory. Such inquiry is not held and, therefore, order of issuance process is barred.

8. The position of law in relation to holding of inquiry under Sec. 202 has been delineated by the Apex Court in the case of Sunil Todi and Others vs. State of Gujrat and Another reported in (2021) SCC OnLine SC 1174, paragraph 46 reads as under. "46. Sec. 145 of the NI Act provides that evidence of the complainant may be given by him on affidavit, which shall be read in evidence in an i