An inquiry under Section 202 of the CrPC is mandatory before issuing summons to an accused residing outside the Magistrate's jurisdiction in cases under Section 138 of the NI Act.

JUDGMENT :

DIVYESH A. JOSHI, J.

1. Rule. Learned APP, Mr. Manan Mehta for respondent no.1 – State of Gujarat and learned advocate, Mr. Digvijay Singh Bisht for learned advocate, Mr. Bhunesh Rupera for respondent no.2 – original complainant waive service of notice of rule.

2. By way of preferring present application under Articles 226 and 227 of the Constitution of India as well as under Section 482 of the Code of Criminal Procedure, 1973 (“CrPC” for short”), the applicant has prayed for quashment of impugned proceedings being Criminal Case No.1001/2015 and the order passed thereon by the learned Additional Chief Metropolitan Magistrate, Court No.35, Ahmedabad qua the applicant.

3. Heard learned advocate, Mr. Tatvdeep Jani for the applicant, learned APP Mr. Manan Mehta for the respondent no.1 – State of Gujarat and learned advocate, Mr. Digvijay Singh Bisht for learned advocate, Mr. Bhunesh Rupera for respondent no.2 – original complainant.

4. Learned advocate submitted that the facts of the present case are that the applicant had taken loan from the respondent no.2 – Finance Company viz., TATA Capital Financial Services Ltd. and as a part of contract, the applicant had issued cheques in favour of the respondent no.2 for the repayment of the loan amount, however one of the cheques being Cheque No.001039 drawn on HDFC Bank, Bhavnagar Branch for an amount of Rs.1,00,342/- issued by the applicant in favour of the respondent no.2 was returned unpaid when it was deposited with an endorsement “banker stopped payment”, which led to filing of the impugned complaint by the authorized officer of the respondent no.2 – Bank, wherein summons has been issued upon the applicant.

5. Learned advocate submitted that in fact, the applicant is residing at Bhavnagar and the office of the respondent no.2 is situated at Ahmedabad and the cheque issued by the applicant is of the bank situated at Bhavnagar and the impugned complaint is filed before the court of learned Metropolitan Magistrate, Ahmedabad on 11.08.2015 and on the very same day i.e. on 11.08.2015, the learned Magistrate issued summons upon the accused, which clearly goes on to shows that while issuing summons under Section 202 of the CrPC, the learned Magistrate concerned has not conducted inquiry as contemplated under Section 202 of the CrPC, which is mandatory requirement under the law. Learned advocate further submitted that even in the present case, the original complainant has not supplied his sworn affidavit along with the impugned complaint and the said aspect has not been considered by the learned Magistrate while issuing summons. Learned advocate has referred to the authorization letter dated 03.09.2013 issued by the respondent – Bank in favour of one Rajendra Parikh, who is Collection Manager of the Company for the functioning in the territory of Surat, Vapi and Baruch in the State of Gujarat to initiate appropriate civil and/or criminal litigation on behalf of the respondent – Bank and submitted that only for three districts, sanction has been given to Mr. Rajendra Parikh for initiation of legal action and not for the Ahmedabad and despite that, the impugned complaint has been filed before the court at Ahmedabad, therefore, the impugned complaint is without jurisdiction and the learned Magistrate ought to have undertaken process under Section 202 of the CrPC before issuance of summons but in the facts of the present case, the said procedure is admittedly missing.

6. At this stage, learned advocate has placed reliance upon the decision of the Constitution Bench in case of In Re. : Expeditious Trial of Case