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PUNJAB AND HARYANA HIGH COURT
Ranjit Singh, J.
Piyush Bharat Saini —Petitioner
versus
Paras Gupta —Respondent
Cri. Msc. M.No. 5325 of 2012
Decided on 11.3.2013
IMPORTANT POINT
Enquiry as envisaged under amended provisions of Section 202, Cr.P.C may not necessarily be insisted upon in those cases tried under N.I. Act where accused person resides outside jurisdiction of Magistrate.
Headnote:Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Section 202—Dishonour of cheque—Summoning—Enquiry—Section 138 is creating civil liability emasculating as criminal cases—Object of punishment prescribed under this Section is punitive as well as compensatory and restitutive—In a summons case under Section 138 enquiry contemplated may have to be different from investigation of an accused which would require services of a trained police officer or an expert—Enquiry as contemplated under Section 202 Cr.P.C., where accused persons or some of them are residing beyond territorial jurisdiction of Court may have been held to be mandatory but whether this mandatory requirement can be insisted upon in a complaint under Section 138 may have to be viewed differently as offences under the Act are of specialized category providing for somewhat different procedure—Magistrate in these cases may have some discretion—Strict requirement of Section 202 Cr.P.C. may not be the need in cases under the Act as that may tend to negate very purpose of expeditious disposal of cases under the Act and may also nullify effect of special provisions made under the Act—Petitions dismissed. (Paras 10, 12, 15, 16, 23, 24 and 25)
Ranjit Singh, J.—Whether the rigors of amended provisions of Section 202 Cr.P.C, laying down a requirement of holding an enquiry, where the person sought to be summoned is outside the jurisdiction of the Court, would apply in the cases of offences under Section 138 of the Negotiable Instruments Act (for short, “the Act”), is an important issue arising in this bunch of Criminal Misc. Petitions filed by the petitioner. The petitioner in these cases has challenged the summoning order primarily on the ground that his summoning was ordered in these cases without holding an enquiry under Section 202 Cr.P.C and hence, prayer is made for quashing of the said summoning order impugned in these different Criminal Misc. M Nos.5325, 5326 and 5327 of 2012, Piyush Bharat Saini v. Paras Gupta); 15609 of 2012, Peeyush Bharat Saini v. Pran Bhayana; and 23724 of 2012, Peeyoosh Bharat Saini v. Raksha Singhal.
2. This Court in the case of S.K. Bhowmik v. S.K. Arora and another1 has held the provisions of Section 202 Cr.P.C. to be mandatory and, thus, has viewed that for summoning a person accused in the complaint without holding enquiry, as envisaged under Section 202 Cr.P.C., would be violative of the amended provisions of Section 202 Cr.P.C. The petitioner has, thus, relied upon the ratio of this judgment to plead quashing of the summoning orders on this ground in the abovesaid petitions. It is now to be examined if the rigors of amended provisions of Section 202 Cr.P.C. would apply in the case of offences under Section 138 of the Act as well.
3. Incidentally, Mr.R.S. Cheema, learned Senior counsel of this Court, who was the counsel for the petitioner in S.K. Bhowmik’s case (supra) was present, when these petitions came up for hearing. The Court thought it appropriate to request the senior counsel to assist the Court in these cases as amicus-curiae. The counsel readily accepted the task and has rendered very valuable assistance to the Court.
4. Before taking up this purely legal issue arising in these cases, it would be essential to notice the facts just to get the hang of the issue agitated in these petitions. For this purpose, the facts are noticed from Criminal Misc. M No.5325 of 2012.
5. The petitioner in these cases is a resident of Delhi. A criminal complaint is filed against him at Kurukshetra. Respondent- complainant has filed this complaint under Section 138 of the Act. Allegations against the petitioner are that he being the proprietor of the firm Education Wise had received a sum of Rs.15 lacs for procuring a seat of Post-graduation in Medical Science. On his failure to arrange the seat, he issued a cheque for returning the amount to the complainant from his account maintained in Axis Bank. He then again issued a cheque from HDFC Bank at Delhi. These cheques, when presented, were dishonoured in March 2010 and October 2010 respectively. The complainant contacted the petitioner again, who issued a cheque dated 15.2.2011 for a sum of Rs.5 lacs as a part payment. This cheque was drawn at ICICI Bank, Shalimar Bagh Branch, New Delhi. This cheque, when presented at Kurukshetra, was returned on 12.5.2011 with the remarks, “funds insufficient”. On this basis, the present complaint was filed against the petitioner. The petitioner has been summoned for an offence under Section 138 of the Act vide order dated 18.7.2011. The petitioner accordingly has approached this Court for quashing the complaint and the summoning order mainly on the ground that he has been summoned without following the procedure laid down in amended Section 202 Cr.P.C.
6. Similar are the facts in the other connected petitions, where the petitioner is accused of having issued cheque drawn at ICICI Bank, New Delhi, which was returned with the same remarks but on some different dates. The petitioner accordingly would plead for quashing of said complaints and the summoning orders as well primarily on the same ground.
7. In S.K. Bhowmik’s case (supra), this Court had a pee
