At the summoning stage, the court's role is to assess the sufficiency of grounds and not conduct a detailed examination of evidence or consider possible defenses.

JUDGMENT :

The present applicant has preferred this C482 application questioning the summoning order dated 09.12.2022, as it was passed by the court of Additional Chief Judicial Magistrate, Haldwani, District Nainital, in Criminal Complaint Case No.5406 of 2022, “Dinesh Chandra Tiwari Vs. Mukhtiyar Singh”, whereby the present applicant has been summoned to be tried for the offence under section 138 of the Negotiable Instruments Act.

2. The argument extended by the learned counsel for the applicant could be summarized in the following manner:-

1. He submits that the entire proceedings of the Criminal Case No.5406 of 2022, “Dinesh Chandra Tiwari Vs. Mukhtiyar Singh” would be bad and maliciously oriented because of the fact that the entire genesis of the proceedings has been the sale deed on which they themselves i.e. the complainants have placed reliance and for that purposes he wanted to refer to certain excerpts of the sale deed to establish his case, that the registration of the complaint under section 138 of the NI Act, is malafide.

2. Apart from it, he has also referred to that in the complaint if paragraphs 2 and 3 are taken into consideration, no offence under section 138 of the NI Act, could be said to have been made out owing to the transactions, which has been referred to in the complaint, which he has relied during the course of the argument.

3. Lastly, he submits that the summoning order, as it has been issued by the court of ACJM, Haldwani, District Nainital on 09.12.2022, and particularly, he has drawn the attention to the contents of paragraph 7, contends that the summoning order is without application of mind because the court of ACJM, has not considered the implications of the pleadings raised in the complaint, as well as to the documents, which was filed thereof in relation to, as to whether at all the offence under section 138 of the NI Act, is made out or not?

3. In order to answer the argument extended by the learned counsel for the applicant, this Court will not have any hesitation to observe that malafides cannot be an “abstract term” under law. Malafides could only be an aspect, which has to be culled out and established only after appreciation of the evidence, and not based upon the perception of the party.

4. Malafide always engages a logical and analytical determination of the facts, as it has been attempted to be carved out by the learned counsel for the applicant in view of the sale deed, which has been appended by him along with the C482 application.

5. This Court is of the view that since malafides is required to be determined by the appreciation of the evidence which could be only depending upon the facts and circumstances of the each case, it cannot be culled out without scrutinizing the evidence, based on which the aspect of the malafide has been argued by the learned counsel for the applicant, and this Court is apprehensive to observe, that where in an eventuality in any case if evidence is required to be determined, in order to substantiate the argument of the malafides, that would be outside the ambit of the scope under section 482 of the CrPC.

6. The attempt made by the learned counsel for the applicant was to the contents of paragraph 7, which is alleged that it happens to be without application of mind, because the implications of the contents of the complaint as referred above and the sale deed has not been appropriately appreciated by the court prior to issuance of the summoning order dated 09.12.2022.

7. In order to answer this argument extended by the learned counsel for the applicant, this Court is of the view that summoning of the accused as contemplated under section 190, has been an aspect dealt with by the Hon’ble Apex Court in the judgment reported in 2019 (20) SCC 539, “State of Gujarat Vs. Afroz Mohammed Hasanfatta”, wherein, the Court has observed that, that for the purposes of issuing summons to an accused person the only basic requirement is the satisfaction of the Magistrate regardi