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RAKESH THAPLIYAL
Rakesh Chandra Rastogi – Appellant
Versus
State of Uttarakhand – Respondent
JUDGMENT :
1. In all these applications, preferred under Section 482 Cr.P.C., since identical question of law is involved, therefore, with the consent of the learned counsel for the parties, same are being decided by a common judgment.
2. The common question of law which is involved in all these matters, namely, “whether an inquiry under Section 202 Cr.P.C. is followed or not and either are mandatory or directory in nature in view of the judgment rendered by the Constitutional Bench of the Hon’ble Apex Court in “Expeditious Trial of Cases under Section 138 of N.I. Act 1881, i.e., Suo Motu Writ Petition (Criminal) No. 2 of 2020, (2021) 16 SCC 116.”
3. Before giving answer to the question of law as above, in all these cases the proceedings under Section 138 of N.I. Act has been challenged only on the ground that before taking cognizance on the complaint and issuing process and summoning the accused, mandatory inquiry as stipulated under Section 202(1) Cr.P.C., has not been followed which in fact mandates postpone of issuance of process for the accused resides outside the territorial jurisdiction of the Magistrate.
4. The counsel for the respondent has not disputed this fact that the pres
The inquiry under Section 202 Cr.P.C. is mandatory before issuing summons to an accused residing outside the jurisdiction, as established by the Supreme Court.
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....
The court established that the amendment to Section 202(1) of the Cr.P.C. requires an inquiry only when the accused resides outside the jurisdiction, but if sufficient grounds are evident from the re....
The court established that the issuance of a cheque, even if post-dated or issued as security, can constitute a legally enforceable debt under Sec. 138 of the N.I. Act, and that the inquiry under Sec....
The main legal point established in the judgment is the imperative nature of the amendment in Section 202 of the Code of Criminal Procedure, emphasizing the duty of the Magistrate to carefully scruti....
The court established that a magistrate must provide an opportunity for the accused to be heard before taking cognizance of criminal complaints, ensuring adherence to procedural justice under Section....
An enquiry under Section 202 of Cr.P.C. is mandatory before the issuance of process in Complaints filed under Section 138 of the Negotiable Instruments Act, 1881, and the Magistrate must comply with ....
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 A....
Point of Law : Postponement of issue of process - The dictum is when Magistrate holds inquiry himself, it is not compulsory that he should examine The witnesses and in suitable cases Magistrate can e....
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