Magistrate must conduct enquiry or investigation under proviso to Section 202 Cr.P.C. before summoning accused outside territorial jurisdiction in Section 138 N.I. Act complaints; non-compliance renders order quashable under Section 482 Cr.P.C.

JUDGMENT :

ASHISH NAITHANI, J.

1. The This application under Section 482 of the Code of Criminal Procedure has been filed by the Applicant for quashing the summoning order dated 29.07.2022 passed by the Additional Chief Judicial Magistrate, Khatima, District Udham Singh Nagar in Complaint Case No. 1012 of 2022 ( Bhawan Dutt Bhatt vs. Bhim Singh ) under Section 138 of the Negotiable Instruments Act, as well as the entire proceedings arising therefrom.

2. The brief and undisputed background, as emerges from the record, is that the Respondent filed a complaint under Section 138 of the Negotiable Instruments Act alleging that he had paid a total amount of Rs. 20 lakhs in cash to the Applicant for construction of a residential house, and that upon failure of the Applicant to carry out the construction, two cheques of Rs. 10 lakhs each dated 18.06.2022 were issued, which on presentation were dishonoured due to insufficiency of funds. After issuance of statutory notice and non-payment, the complaint was filed, whereupon the learned Magistrate, by order dated 29.07.2022, summoned the Applicant.

3. It is not in dispute that the Applicant is a resident of District Nainital, whereas the complaint was filed and entertained by the court at Khatima, District Udham Singh Nagar. It is also borne out from the summoning order that before issuance of process, no enquiry or investigation under Section 202 Cr.P.C. was conducted.

4. Heard learned counsel for the parties and perused the records.

5. Learned counsel for the Applicant assailed the impugned summoning order primarily on the ground of mandatory non- compliance of Section 202 Cr.P.C. It was submitted that the Applicant is admittedly a resident of District Nainital, whereas the complaint was filed before the court at Khatima, District Udham Singh Nagar. In such circumstances, the Magistrate was statutorily bound to postpone issuance of process and conduct an enquiry or direct investigation before summoning the Applicant. The summoning order dated 29.07.2022, on the face of it, does not reflect that any such exercise was undertaken, rendering the order illegal and unsustainable.

6. It was further submitted that the impugned order is mechanical and non-speaking, and does not disclose any application of judicial mind. Summoning of an accused being a serious matter, the Magistrate was required to record satisfaction based on some preliminary verification, particularly when the accused resides outside territorial jurisdiction.

7. Learned counsel also contended that the complaint is a malicious prosecution arising out of a prior civil dispute between the parties, which had culminated in a decree in favour of the Applicant shortly before filing of the present complaint. It was argued that the alleged cash transaction of Rs. 20 lakhs is unsupported by any documentary proof, and that the cheques in question were misused after being procured through third parties. On these grounds, it was submitted that continuation of the proceedings would amount to abuse of the process of court.

8. Per contra, learned counsel for the Respondent opposed the application and submitted that the complaint clearly discloses all the essential ingredients of Section 138 of the Negotiable Instruments Act, namely issuance of cheques, their dishonour, service of statutory notice and failure to make payment. It was argued that at the stage of summoning, the Magistrate is only required to see whether a prima facie case is made out, which condition stands fully satisfied in the present case.

9. It was further contended that the pleas raised by the Applicant regarding civil dispute, misuse of cheques and absence