Rishi Bhardwaj vs State of Uttarakhand & Anr.

LOK PAL SINGH, J.

By means of present criminal misc. application under Section 482 of The Code of Criminal Procedure, 1973, applicant seeks to quash the

summoning order dated 30.01.2017 as well as the entire proceedings of criminal complaint case no.72 of 2017 under Section 138 of Negotiable

Instruments Act, 1881, pending in the court of Judicial Magistrate, Almora.

Brief facts of the case are that on 11.01.2017 respondent no.2/complainant filed a criminal complaint against the applicant before the Chief Judicial

Magistrate, Almora under Section 138 of Negotiable Instruments Act, 1881 alleging therein that the respondent no.2 is a company registered under the

Companies Act and its branch office is situated at Link Road Thapliya, Almora which involves in the business of finance/financial assistance. It was

stated that the respondent no.2 is the power of attorney holder of the aforesaid company. The applicant has been assisted through a financial

assistance of Rs.2,60,000/- for the purpose of a purchasing a vehicle Mahindra DI3200 and agreement to this effect has been executed between the

parties. Due to legal liability of the aforesaid financial assistance, the applicant submitted a cheque no.721741 dated 22.9.2016 for Rs.1,91,445/-of his

bank, namely, Syndicate Bank, SIDCUL, Rudrapur, but when the aforesaid cheque was presented for encashment, same got dishonored with an

endorsement “funds insufficientâ€. Thereafter, respondent no.2 send a legal notice to the applicant through his counsel on 09.12.2016, but the said

notice could not be served upon the applicant though it was sent on the correct address and returned to the respondent no.2 being undelivered. On this,

criminal case no.72 of 2017 was registered. In support of complaint, the complainant filed his statement u/s 200 Cr.P.C. in the form of affidavit and

also filed the documents including the original cheque dated 11.11.2016, information dated 11.11.2016 received from the Bank and copy of the notices

sent to the accused. After perusal of the complaint and the statement of the complainant filed under Section 200 Cr.P.C., Judicial Magistrate, Almora,

vide order dated 30.01.2018, took the cognizance on the complaint filed by the complainant and summoned the accused/applicant, for allegedly

committing offence punishable under Section 138 of N.I. Act.

Learned counsel for the applicant would submit that as per the amended provision of section 202 Cr.P.C. it is incumbent upon the learned

Magistrate to carry out an inquiry or investigation by the police official or by such other person as he thinks fit for the purpose of deciding whether

there is sufficient ground for proceeding or not.

Learned counsel for the petitioners would place reliance upon the judgment of Hon’ble Apex Court in the case of National Bank of Oman

vs.Barakara Abdul Azia and another reported in (2013) 2SCC 488 wherein it is held that in cases where accused reside beyond the area over which

Magistrate concerned exercise jurisdiction, it is incumbent upon the Magistrate to carry out inquiry or order investigation under section 202 Cr.P.C.

before issuing process.

Before any further discussion, it would be apt to mention here Section 202 of Cr.P.C., which is extracted hereunder:

“202. Postponement of issue of process.

(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under

section 192, may, if he thinks fit, [and shall, exercises his jurisdiction] postpone the issue of process against the accused, and either inquire into the

case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or

not there is sufficient ground for proceeding:

Provided that no such direction for investigation shall be made,--

(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or

(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under

section 200.

(2) In an inquiry under sub- section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:

Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the

complainant to produce all his witnesses and examine them on oath. 4

(3) If an investigation under sub- section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred

by this Code on an officer- in-charge of a police station except the power to arrest without warrant.â€​

The case-law cited by the learned counsel for the petitioner is of no help to the petitioner, as the Hon’ble Apex Court in the judgment of

National Bank of Oman (supra), in further paragraphs, has held as follows:-

“9. The duty of a Magistrate receiving a complaint is set out in Section 202 of the Cr.P.C. and there is an obligation on the Magistrate to find out if

there is any matter which calls for investigation by a criminal court. The scope of enquiry under this Section is restricted only to find out the truth or

otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. Investigation under Section 202 of

the Cr.P.C. is different from the investigation contemplated in Section 156 as it is only for holding the Magistrate to decide whether or not there is

sufficient grounds for him to proceed further. The scope of enquiry under Section 202 of the Cr.P.C. is, therefore, limited to the ascertainment of truth

or falsehood of the allegations made in the complaint â€" (i) on the materials placed by the complainant before the Court (ii) for the limited purpose of

finding out whether a prima facie case for issue of process has been made our; and (iii) for deciding the question purely from the point of view of the

complainant without at all adverting to any defence that the accused may have.

Section 202 of the Cr.P.C. was amended by the Cr.P.C. (Amendment Act 2005) and the following words were inserted:

“and shall, in a case where the accused is residing at a place beyond the area in which he exercises jurisdiction†The notes on clauses for the

above-mentioned amendment read as follow:

“False complaints are filed against persons residing at far off places simply to harass them. In order to see that the innocent persons are not

harassed by unscrupulous persons, this clause seeks to amend sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before

summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or

by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused.†The amendment

has come into force w.e.f. 23.6.2006 vide notification No.S.O.923(E) dt. 21.6.2006.

The purpose of amendment in section 202 Cr.P.C. is to ascertain that innocent persons are not harassed by unscrupulous persons. There are two

situations mentioned in the provisions that the Magistrate himself shall enquire into the matter or direct investigation to be made by police officer or

such other persons as he thinks fit. Thus, investigation through the police would be conducted, when the Magistrate before whom the complaint is filed

is not satisfied, and the Magistrate thinks it fit that the matter be inquired through police or through other persons. The facts of the Judgment (supra)

cited by the learned counsel for the petitioner are entirely different. In that case, it was alleged before the Court that just to harass the petitioners,

summoning order has been passed and that they have been falsely implicated. In the case at hand, there is no such pleading by the applicant.

The position would be otherwise, if the applicant would have challenge the summoning order on the ground, that the allegations made in the

complaint and that of in the statement recorded under section 200 Cr.P.C. are false and that the complaint has been filed just to harass him. But, the

averments made in the complaint have not been denied. As far as the statement recorded u/s 200 of Cr.P.C. is concerned, the complainant has filed

the statement on oath by way of affidavit. The complainant has also filed documentary evidence to consider the statement and evidence u/s 202 of

Cr.P.C. Documentary evidence filed by the complainant is sufficient to consider the statement u/s 202 of Cr.P.C. Thus, there is no requirement to

adduce the oral evidence u/s 202 of Cr.P.C. as well as for the learned Magistrate to carry out inquiry or order investigation under section 202 Cr.P.C.

before issuing process.

The Hon’ble Apex Court in the case of Sonu Gupta vs. Deepak Gupta and others reported in (2015) 3SCC 424 has held that prima facie

satisfaction of the Magistrate concerned is sufficient for summoning the accused. The relevant paragraphs are quoted hereunder:-

“7. Considering the stage at which the criminal complaint is pending and the nature of proposed order, this Court would not like to express any

definite opinion on the merits of the allegations made in the complaint petition or upon the defence taken by the accused persons before the courts

below or in this Court lest it prejudices one or the other party in future.

Having considered the details of allegations made in the complaint petition, the statement of the complainant on solemn affirmation as well as

materials on which the appellant placed reliance which were called for by the learned Magistrate, the learned Magistrate, in our considered opinion,

committed no error in summoning the accused persons. At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind

only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the

accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor he is required to

evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage

whether the materials will lead to conviction or not.â€​

Hon’ble Apex Court in Amit Kapoor vs Ramesh Chander and another, (2013) 1 SCC (Cri) 986, has laid down certain

principles in respect of exercise of jurisdiction under Section 482 of Cr.P.C. One of the principle is that the Court should apply the test as to whether

the uncontroverted allegations, as made from the record of the case and the documents submitted therewith, prima facie establish the offence or not.

If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic

ingredients of a criminal offence are not satisfied then the court may interfere. Where the factual foundation for an offence has been laid down, the

courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do

not appear to be satisfied if there is substantial compliance with the requirements of the offence. The power is to be exercised ex debito justitiae, i.e.,

to do real and substantial justice for administration of which alone, the courts exists.

The Hon’ble Apex Court in Rajiv Thapar and others vs. Madan Lal Kapoor (2013) 3 SCC 330 in Para 28 of the said ruling has held as under:-

“28. The High Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C., must make a just and rightful choice. This is not a stage of

evaluating the truthfulness or otherwise of allegations levelled by the

prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused is.

Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/ complainant, it would be

impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution/

complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true,

because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to

succeed, by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court

declaring the legal position, that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s)

levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held.â€​

In the light of aforesaid, this Court is of the view that prima facie a case is made out against the applicant. Learned Magistrate has rightly passed

the summoning order against the applicant to face the trial for the offence punishable u/s 138 of N.I. Act. Learned counsel for the applicant has failed

to show any illegality or perversity or any miscarriage of justice committed by the courts below while passing order of summoning against the

applicant.

Present criminal misc. application u/s 482 Cr.P.C. is dismissed accordingly.