Issuance of summons without conducting inquiry under Section 202 of the Cr.P.C. is impermissible, making the cognizance under Section 138 of the N.I. Act unsustainable.

JUDGMENT :

Savitri Ratho, J.

This application under Section 482 of the Code of Criminal Procedure has been filed challenging the order dated 01.07.2023 passed by the learned Sub Divisional Judicial Magistrate (in short “SDJM”), Berhampur in 1.C.C. No. 219 of 2023, taking cognizance of the offence under Section 138 of the Negotiable Instruments Act (in short “NI Act”) and the criminal proceeding i.e. pending against the petitioners. The relevant portion of the prayer is extracted below :-

“It is therefore prayed that in view of the submissions made above, the CRLMC be admitted, records be called for and after hearing the parties the same be allowed and the order of cognizance dt. 01.07.2023 passed in l.C.C. case No. 219 of 2023 and the entire criminal proceeding i.e. l.C.C. case No. 219 of 2023 pending in the court of the learned SDJM Berhampur may kindly be quashed in the interest of justice”……

CASE OF THE COMPLAINANT

2. The complainant-opposite party (hereinafter “the complainant”) is the owner of Bhagyalaxmi Bhandar Milk Point. The accused – petitioners (hereinafter “the petitioners”) and the complainant are known to each other. The petitioners are running a rice mill at Golapali under Aska Police Station. The petitioners used to supply rice to the father of the complainant. His father died in the year 2020 and the complainant took over the business of his father and paid Rs.22,00,000/- in advance to the petitioners in February, 2022, for providing him five loads of rice in two months intervals. When the petitioners did not supply the rice to him, he demanded return of the advanced amount. After repeated visits and requests, on 17.03.2023 the petitioners gave him a cheque bearing no. 009671 of Corporation Bank, Aska Branch for Rs.22,00,000/-

On 21.03.2023 the complainant deposited the cheque in his account at SBI Main Branch, Berhampur but it was returned to him on the same day as the said cheque was an old one. After consulting to the petitioners, regarding the dishonour of cheque the complainant on 03.04.2023 again deposited the aforementioned cheque in his account at Axis Bank, Berhampur for encashment. The cheque was not cleared but the same was dishonoured and retuned to him on the same day. On 20.04.2023 the complainant sent a statutory demand notice through his advocate by registered post to the petitioners which was received on 28.04.2023. the petitioners gave a false denial on 06.05.2023. As they did not make payment till 13.05.2023, the complainant filed 1.C.C. No. 219 of 2023 in the Court of the learned S.D.J.M., Berhampur for realisation of the cheque amount.

REPLY OF THE PETITIONERS TO THE STATUTORY NOTICE.

3. The petitioners replied to the notice on 06.05.2023 stating that cheque in question was lost in the year 2020 for which the petitioners had intimated to the bank on 15.07.2020 to stop payment. From the legal notice the petitioners learned that the complainant had stolen the cheque and tried to encash it to put the petitioners to financial loss. Corporation Bank had merged with Union Bank of India in the year 2020 and the cheque was not circulation, so how could the cheque be placed by the complainant. The petitioners proposed to initiate a criminal case against the complainant for utilizing a stolen cheque unless he refrained from making baseless allegations.

IMPUGNED ORDER

4. On 01.07.2023 the learned S.D.J.M., Berhampur found existence of prima facie materials to proceed against the petitioners and took cognizance of the offence under Sec. 138 N.I. Act. and issued summons to the petitioners, after conducting enquiry on ve