The sufficiency of evidence on affidavit and the lack of prejudice to the petitioner by not complying with Section 202 of the Code were central legal points established in the judgment.

1. By this petition under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code, 1973 '), the petitioner has prayed for quashment of Criminal Complaint Case No.183/2011 pending in the Court of Additional Chief Judicial Magistrate, Raipur in which the Court below has taken cognizance against the petitioner and has issued process vide order dated 28-10-2010 substantially on the ground oflack of territorial jurisdiction and non-compliance of mandatory-provisions contained in Section 202 (1) of the Code.

2. As per copy of the complaint filed on behalf ofthe respondent, dispute relating to tenancy of accommodation situate at Chandigarh was resolved and the petitioner issued cheque of Rs.90 lakhs on 20-8-2010 in favour of the respondent, same was presented for encashment on 24-8-2010 at ING Vysya Bank Limited, Branch Raipur, same was bounced on the ground of insufficiency of money and difference in signature of the drawer i.e. the petitioner herein. Notice as required under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act') was served upon the petitioner which the petitioner has received on 16-9-2010 & 17-9-2010. Finally, complaint under Section 138 of the Act was filed along with evidence on oath and other documents. On the basis of evidence on oath of the respondent, the Court below has taken cognizance and has issued process against the petitioner vide the order impugned.

3. I have heard learned counsel for the petitioner, perused the petition and other documents.

4. Learned counsel for the petitioner vehemently argued that originally the dispute relates to accommodation situate at Chandigarh, as per the complaint, the alleged cheque ofRs.90 lakhs has been issued by the petitioner at Chandigarh and account of the petitioner is at Punjab & Sind Bank, Branch Chandigarh. The respondent is residing at Raipur, he has presented the cheque before the bank situate at Raipur and has issued notice at Raipur. These facts do not give jurisdiction to the Court situate at Raipur for taking cognizance of the offence punishable under Section 138 of the Act. Learned counsel further argued that Act 25 of 2005 came into force with effect from 23-6-2006 and according to this amended provision, the Magistrate taking cognizance of the offence on the basis of complaint is under obligation to postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer and in a case where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, the provision is mandatory. In case the accused resides at a place beyond the area in which the Magistrate exercises his jurisdiction, conduction of inquiry into the case by the Magistrate or directing an investigation to be made by a police officer in accordance with Section 202 of the Code is mandatory. Learned counsel also argued that in the present case, the Magistrate has not examined the complainant or his witnesses under Section 200 of the Code, he has not inquired or directed for investigation under Section 202 of the Code and thereby committed grave illegality. In these circumstances, the order taking cognizance and continuance of criminal complaint before such Court is abuse of the process of the Court and the Court below has committed grave i1!egality and caused serious prejudice to the petitioner.

5. Learned counsel for the petitioner placed reliance in the matter of Shri Ishar Alloy Steels Ltd. Vs. Jayaswals NECO Ltd.1 in which the Supreme Court has held that "the bank" referred to in clause (a) to the proviso to Section 138 of the Act would mean the drawee-bank on which the cheque is drawn and not all banks where the cheque is presented for collection including the bank of the payee, in whose favour the cheque is issued. Learned counsel further placed reliance in the matter of Adalat Prasad Vs. Rooplal Jindal and other in which the Supreme C