IMPORTANT POINT
The court emphasized the limited scope of inquiry at the stage of issuance of summons under Section 138 of the NI Act and the applicability of the rebuttable presumption under Section 139 of the NI Act.

JUDGMENT

1. Both the present petitions raise similar issues and hence are being taken up together for disposal.

2. CRL.M.C.2480/2023 has been filed by the petitioner/complainant Northern India Paint Colour and Varnish Co. LLP (hereinafter "Complainant") impugning the order dated 15th February, 2023 passed by the learned Additional Sessions Judge (ASJ), Tis Hazari Courts, Delhi, whereby the summoning order dated 9th January, 2020 passed by the Metropolitan Magistrate (MM), Central, Tis Hazari Courts, Delhi, in a complaint case under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) being CC No. 380/2020 has been set aside and remanded the matter back to the learned MM for fresh consideration. The relevant observations from the impugned order are set out below:

"6. In this case, admittedly, the accused is residing beyond the territorial jurisdiction of the ld. Trial Court. Therefore, the ld. Trial Court, ought to have conducted an inquiry u/s. 202 CrPC before arriving at a conclusion that there is sufficient ground to proceed against the accused. However, in the instant case, the said inquiry was not conducted. In absence of the said mandatory inquiry, the impugned order of summoning of the petitioner cannot be legally sustained. Hence, the impugned order is hereby set aside.

7. The present case is remanded back with directions to the Ld. Trial Court to conduct the mandatory inquiry u/s.202 CrPC for ascertaining whether all the ingredients of the offence punishable u/s.138 NI Act including issuance of the cheque in question by the petitioner in discharge of his lawful liability are satisfied or not. In the said inquiry, the ld. Trial Court shall properly appreciate the Share Sale and Purchase Agreement dated 27.09.2019 between the parties to ascertain if the amount of the cheque in question has become lawfully due and payable by the petitioner to the respondent towards the sale price of the shares and whether pre-requisites for the transfer of the said shares, as contained in the said agreement, have been complied by the respective parties."

3. CRL.M.C.4141/2023 has been filed by the petitioner/accused Sushil Chaudhary (hereinafter "Accused"), seeking quashing of the order dated 27th January, 2020 passed by the learned MM, whereby the Accused has been summoned in CC No.886/2020 filed by the Complainant under Section 138 of the NI Act on the ground that the mandatory inquiry under Section 202 of the Code of Criminal Procedure, 1973 (CrPC) has not been conducted by the learned MM.

4. Both sides have filed brief written note of submissions in support of their submissions.

5. Counsel for the Complainant submits that the mandatory inquiry in terms of Section 202 of the CrPC was duly conducted by the learned MM in both the complaint cases. For the purpose of the said inquiry, it is not necessary for the learned MM to examine witnesses and the said inquiry can be conducted on the basis of pre summoning evidence and the documents on record. Further, it is not mandatory for the learned MM to formally mention Section 202 of the CrPC in the summoning order, if otherwise it is clear that the inquiry under the aforesaid section has been duly conducted. Reliance in this regard has been placed on Re: Expeditious Trial of Cases Under Section 138 of NI Act 1881, 2021 SCC OnLine SC 325.

6. It is further submitted that in view of the presumption contained under Section 139 of the NI Act, the learned MM was not required to ascertain the existence of a legally enforceable debt prior to the issuance of summons as that is a matter of trial. In this regard, reliance has been placed on the judgment of Shiv Kumar v. Ramavtar Agarwal, (2020) 12 SCC 500.

7. Per contra, senior counsel appearing on behalf of the Accused submits that the learned MM has failed to conduct the mandatory inquiry under Section 202 of the CrPC and the summoning orders have been passed mechanically without ascertaining whether any legally enforceable debt exists or not. In the pre