Mahesh Kumar v. Ranjit Pratap) under Section
Case Details
Neutral Citation No. - 2024:AHC:130933 HIGH COURT OF JUDICATURE AT ALLAHABAD ***** (Sl No.8) Court No. - 79 Case :- APPLICATION U/S 482 No. - 15537 of 2024 Applicant :- Ranjit Pratap Opposite Party :- State of U.P. and Another Counsel for Applicant :- S.M. Muzammil Mahmood,Wahaj Ahmad Siddiqui Counsel for Opposite Party :- G.A. Hon'ble Anish Kumar Gupta,J.
Legal Reasoning
decides to conduct such inquiry himself is governed by sub-section (2) and sub-section (2) gives a discretion to the Magistrate as to what type of inquiry he should conduct and whether he should examine the witnesses under Section 202 Cr.P.C. or not, is his discretion. Therefore, merely because no witnesses under Section 202 Cr.P.C., were examined by the Magistrate it cannot be said that the mandate of Section 202 Cr.P.C. is not complied with. Further, in the instant case the Magistrate has categorically gone through the statement under Section 200 Cr.P.C. on the affidavit of the complaint and the relevant documents and from all the aforesaid documents, he has found a prima facie case against the applicant herein, therefore, he has summoned the applicant herein. Therefore, no fault can be found with the summoning order dated 02.09.2019 passed by the Magistrate. So far as the claim of the applicant that entire liability has been cleared by him against the cheque, is a subject matter of trial which can be proved by the applicant during the trial. Once, a prima facie case is made out and the cheque admitted to have been issued by the applicant, then, the presumption under Section 139 of the N.I. Act shall come into play against the applicant and it shall be presumed that the said cheque was issued in discharge of the legal liability by the applicant. In view thereof, learned A.G.A. submits that no interference is called for in the instant case. 6. Having heard the rival submissions made by learned counsels for the parties, this Court has carefully gone through the record of the case. From the perusal of the complaint it is apparent that the applicant has entered into an agreement to sell a house to the opposite party no.2, who had advanced a sum of Rs. 5,00,000/- in pursuance thereof, subsequently the applicant shown his inability to sell the said house. Thereupon, a settlement was arrived at between the parties on 14.09.2016 and the applicant agreed to return the aforesaid sum of Rs. 5,00,000/- to the opposite party no.2. Subsequently, the applicant has issued a cheque of Rs. 2,50,000/- against the part payment of the said amount which was presented for encashment and was dishonored on 25.02.2019 for the reason "fund insufficient". Thereupon, a legal demand notice was sent on 19.03.2019, despite that the applicant did not comply with the said notice. Thereupon, the instant complaint case was filed on 02.04.2019, thereafter, the statement on affidavit under Section 200 Cr.P.C. was given by the opposite party no.2 and thereupon the trial court, vide order dated 02.09.2019, having satisfied that all contents of Section 138 of the N.I. Act are established prima facie, therefore, he has summoned the applicant herein for trial. From the perusal of the record it appears that since 2019, the trial is pending. Initially, summons were issued, thereafter, bailable warrants were issued for continuously sufficiently longtime, thereafter, non- bailable warrants have been issued on 09.11.2023 against the applicant. Despite that the applicant did not appear before the trial court and now instant application has been filed. The main argument of learned counsel for the applicant is with regard to not following the procedure prescribed under Section 202 Cr.P.C. To appreciate that argument it would be relevant to note the provisions of Section 202 Cr.P.C., which reads as under: "Section 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, in a case where the accused is residing at a place beyond the area in which he 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 Sessions; 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 witness 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. (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." 7. From the perusal of sub-section (1) of Section 202 Cr.P.C. it is crystal clear that once the accused is resident of outside the jurisdiction of the Magistrate concerned, the inquiry under Section 202 Cr.P.C is mandatory and once the Magistrate decides to inquire himself the scope of such inquiry is governed by sub-section (2) Cr.P.C., which gives ample discretion to the Magistrate to look into the material available and thereupon if he thinks fit he may examine the witnesses under Section 202 Cr.P.C. However, the examination of witnesses under Section 202 Cr.P.C is not mandatory even after the amendment of Section 202 Cr.P.C. in the year 2005. From the facts of the case the complaint is duly supported by the evidence by way of affidavit under Section 200 Cr.P.C. submitted by the opposite party no.2 and all the relevant documents required for establishing the offence under Section 138 of the N.I. Act, were produced by the opposite party no.2, which has been perused by the trial court concerned and in his discretion the Magistrate has not thought it fit to examine the witnesses under Section 202 Cr.P.C. Therefore, no fault can be found on the part of the Magistrate on this ground. When, Magistrate has found a prima facie case to have been established on the basis of all the relevant documents produced before him, therefore, no fault can be found with the summoning order as well. So far as the submission of the applicant herein that there is no liability and all payments against the cheque has already been made by him, is a subject matter of fact which can be proved by the applicant during the trial of the case and merely on that ground the proceedings cannot be quashed in view of presumption under Section 139 of the N.I. Act, that once the cheque is stated to have been issued, therefore, the presumption shall be drawn in favour of the holder of the cheque and against the drawer of the cheque. 8. In view thereof, in the considered opinion of this Court there is no merit in the instant application and the same is accordingly dismissed. Order Date :- 13.8.2024 Shubham Arya (Anish Kumar Gupta, J.)
Arguments
1. Heard Sri Wahaj Ahmad Siddiqui, learned counsel for the applicant and Sri Rajiv Kumar Singh, learned A.G.A. for the State. 2. The instant application under Section 482 Cr.P.C. has been filed seeking quashing of the summoning order dated 02.09.2019 as well as non-bailable warrant dated 04.10.2023 in Complaint Case No. 396 of 2019 (Mahesh Kumar Vs. Ranjit Pratap) under Section 138 of the the Negotiable Instruments Act, 1881 (in short, 'the N.I. Act'), P.S.- Burhana, District- Muzaffarnagar, pending in the court of learned Additional Court N.I. Act, Muzaffarnagar. 3. Learned counsel for the applicant vehemently argued that the applicant is the resident of Meerut whereas the instant complaint case has been filed at Muzaffarnagar. Therefore, the inquiry under Section 202 Cr.P.C. was mandatory and without complying with the provisions of Section 202 Cr.P.C. and without completing the inquiry as required under Section 202 Cr.P.C., the applicant has been summoned. 4. Learned counsel for the applicant further submits that there is no liability and the entire payment against the cheque in question has already been made. Therefore, the instant prosecution is nothing but a malicious prosecution on the part of the opposite party no.2, therefore, he prays for quashing of the summoning order as well as entire proceedings in the instant case. 5. Per contra, learned A.G.A for the State submits that though the inquiry under Section 202 Cr.P.C. is mandatory in case where the accused is resident of outside the jurisdiction of the Magistrate concerned, however, the scope of such inquiry once Magistrate