For summoning under Section 138 of the NI Act, recording of statements under Sections 200 and 202 Cr.P.C. is not required, and the evidence of the complainant may be given by affidavit as per Section 145(1) of the NI Act.

JUDGMENT

Swarana Kanta Sharma, J.

1. The petitioner has preferred the present petition under Section 482 of the Criminal Procedure Code, 1973 (`Cr.P.C.') for setting aside the impugned summoning order dated 04.12.2017 passed by the learned Metropolitan Magistrate, Rohini (North) District Courts, Delhi in Criminal Complaint No. 5235/2017 titled as `Anil Gupta Vs. M/s YMS Mobitech Pvt. Ltd. & Ors' whereby the petitioners had been summoned for the offences punishable under Section 138 read with Section 141, Negotiable Instruments Act, 1881 (`NI Act').

2. The petitioners herein had been arraigned as accused no. 3 and 4 in the complaint under Section 138 of NI Act filed by respondent.

3. Briefly stated, as disclosed from the complaint, the accused persons had approached the complainant and authorized him to work as their super-distributor for which complainant had invested a substantial amount of Rs.1,04,33,075/- (Rupees one crore four lakhs thirty thousand and seventy-five only) with accused no. l i.e., M/s YMS Mobitech Pvt. Ltd. Since a substantial amount had accumulated in favour of the complainant, accused had issued a cheque bearing no. 002027 dated 17.08.2017 for a sum of Rs. 14,33,075/- (Rupees fourteen lakh thirty-three thousand and seventy-five Only) drawn on HDFC Bank Ltd. Stephen House, 4, BBD Bag, East Kolkata-700001, West Bengal with signature of accused no. 2 to partly discharge the aforesaid liabilities. The complainant had presented the cheque with his bank, i.e., HDFC Bank Ltd., Northex Mall, Sector 9, Rohini, Delhi; however, the same had returned unpaid vide memo dated 25.09.2017. Accordingly, the complainant had sent a legal notice of demand dated 25.10.2017 to the accused persons upon dishonouring of cheque, calling upon the accused persons to make the payment but no reply or payment was made. Therefore, the present complaint was filed by the complainant before Rohini (North) District Courts, Delhi and the accused was summoned by the learned MM vide summoning order dated 04.12.2017.

4. Learned counsel for the petitioners submits that the impugned summoning order suffers from illegality since section 202 Cr.P.C. mandates the postponement of the issuance of process where an accused resides beyond the jurisdiction of the territory of the Court and despite the same, no inquiry was carried out by the learned MM in the present case.

5. Per contra, learned counsel for complainant/respondent argues that the present petition has been preferred on the ground of non- compliance of Section 202 Cr.P.C. which is misconceived and vexatious. Further, it is submitted that provisions of Section 202 Cr.P.C. does not stipulate a specific mode of inquiry. It is submitted that the issuance of summons against the petitioners and the impugned order is legal without any bias or infirmity. Further, learned counsel submits that these are specific averments in the complaint filed under Section 138 read with Section 141 of NI Act before the learned Trial Court in conformity with the pre-requisite conditions as mentioned in the judgment of K.K. Ahuja v. V.K. Vora (2009) 10 SCC 48. It is therefore, submitted that the contentions raised by the petitioners are all triable issues and the present petition deserves to be dismissed.

6. The arguments addressed by both sides have been heard and material on record has been perused.

7. The primary contention raised on behalf of petitioners is that the learned Trial Court had failed to carry out inquiry as per Section 202 Cr.P.C. To appreciate this contention, Section 202 of Cr.P.C. is reproduced herein under:

202. Postponement of issue of process.

(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, 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 or by such other person