Sanjay Kumar Pandey v. Ashish Kumar Dubey) U

1. Sri R.S. Pandey, learned counsel for the applicant and Sri Moti Lal, learned AGA for the State.

2. This is an application U/s 528 BNSS filed for quashing the complaint case no. 23489 of 2020 (1254 of 2023) (Sanjay Kumar Pandey vs. Ashish Kumar Dubey) U/s 138 of N.I. Act, P.S. Bhelupur, District Varanasi including summoning order dated 24.12.2020 pending in the court of ACJM, III, Varanasi.

3. The case of the applicant is that on 01.12.2020 a complaint was lodged by the opposite party no.2 against the applicant U/s 138 of N.I. Act with an allegation that with respect to purchase of a four wheeler which is claimed to be owned by the applicant, the opposite party no.2 had made a payment of Rs. 4,86,500/- and when the vehicle was not transferred in the name of opposite party no.2 then the opposite party no.2 sought refund of the said amount and the applicant had drawn a cheque bearing no. 000017 dated 03.10.2020 of an amount of Rs. 4,86,500/- which on presentation in the bank was dishonoured on 06.10.2020, a statutory notice stated to have been issued on 29.10.2020, despite service when the payments were not paid, so on 01.12.2020 the complaint was lodged. Thereafter, on 24.12.2020 the court of ACJM, court no.3 Varanasi in complaint case no. 23489 of 2020 summoned the applicant U/s 138 of N.I. Act. Questioning the summoning order, the applicant has filed the present application.

4. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for a single moment for more than one reason. Firstly, the statement U/s 200 & 202 Cr.P.C. all the witnesses have not been recorded however, on the basis of the evidence on affidavit, the applicant has been summoned. Secondly, as per sub-section 2 of Section 204 Cr.P.C., it is mandatory that no summons or warrants shall be issued against the accused under sub-section 1 until a list of the prosecution witnesses has been filed. The submission that the statement has not been furnished with the list of witnesses. Thirdly, the statutory legal notice is though dated 29.10.2020, however, the same has been sent on an incorrect address as in this regard, reference has been made to the LIC policies so as to content that the opposite party no.2 used to be a LIC agent and he had done LIC of the applicant and his family members and he was well known about the address. Thus, it is submitted that the summoning order cannot be sustained.

5. Learned AGA on the other hand submits that once the cheque stood drawn which was dishonoured then the presumption U/s 139 of N.I. Act would be in favour of the holder of the cheque. He further submits that the summoning order dated 24.12.2020 whereas the present application has been presented in the month of May, 2025, thus, post lapse of five years in absence of any plausible explanation, this Court may not interfere at this stage.

6. I have heard the submissions so made across the bar and perused the record carefully.

7. Apparently, the applicant has been summoned U/s 138 of N.I. Act on the allegations that a cheque bearing no. 000017 dated 03.10.2020 of an amount of Rs. 4,86,500/- was dishonoured followed by a statutory demand notice dated 29.10.2020 and the complaint dated 01.12.2020. So far as the first contention of the learned counsel for the applicant that in absence recording of statement U/s 200 & 202 Cr.P.C., the applicant has been summoned is concerned, the same is out of the context for the simple reason that a larger bench of the Hon'ble Apex Court in the case of expeditious trial of cases U/s 138 of N.I. Act 1881 in Re: (2021) 16 SCC 116 had the occasion to consider the said aspect of the matter wherein paragraph nos.10 to 12 the following was observed: "10. Section 202 of the Code confers jurisdiction on the Magistrate to conduct an inquiry for the purpose of deciding whether sufficient grounds justifying the issue of process are made out. The amendment to Section 202 of the Code with effect from 23.06.2006, vide Act 25 of 2005, made it mandatory for the Magistrate to conduct an inquiry before issue of process, in a case where the accused resides beyond the area of jurisdiction of the court. (See: Vijay Dhanuka & Ors. v. Najima Mamtaj & Ors.1, Abhijit Pawar v. Hemant Madhukar Nimbalkar and Anr.2 and Birla Corporation Limited v. Adventz Investments and Holdings Limited & Ors.). There has been a divergence of opinion amongst the High Courts relating to the applicability of Section 202 in respect of complaints filed under Section 138 of the Act. Certain cases under Section 138 have been decided by the High Courts upholding the view that it is mandatory for the Magistrate to conduct an inquiry, as provided in Section 202 of the Code, before issuance of process in complaints filed under Section 138. Contrary views have been expressed in some other cases. It has been held that merely because the accused is residing outside the jurisdiction of the court, it is not necessary for the Magistrate to postpone the issuance of process in each and every case. Further, it has also been held that not conducting inquiry under Section 202 of the Code would not vitiate the issuance of process, if requisite satisfaction can be obtained from materials available on record.

11. The learned Amici Curiae referred to a judgment of this Court in K.S. Joseph v. Philips Carbon Black Ltd & Anr. where there was a discussion about the requirement of inquiry under Section 202 of the Code in relation to complaints filed under Section 138 but the question of law was left open. In view of the judgments of this Court in Vijay Dhanuka (supra), Abhijit Pawar (supra) and Birla Corporation (supra), the inquiry to be held by the Magistrate before issuance of summons to the accused residing outside the jurisdiction of the court cannot be dispensed with. The learned Amici Curiae recommended that the Magistrate should come to a conclusion after holding an inquiry that there are sufficient grounds to proceed against the accused. We are in agreement with the learned Amici.

12. Another point that has been brought to our notice relates to the interpretation of Section 202 (2) which stipulates that the Magistrate shall take evidence of the witness on oath in an inquiry conducted under Section 202 (1) for the purpose of issuance of process. Section 145 of the Act provides that the evidence of the complainant may be given by him on affidavit, which shall be read in evidence in any inquiry, trial or other proceeding, notwithstanding anything contained in the Code. Section 145 (2) of the Act enables the court to summon and examine any person giving evidence on affidavit as to the facts contained therein, on an application of the prosecution or the accused. It is contended by the learned Amici Curiae that though there is no specific provision permitting the examination of witnesses on affidavit, Section 145 permits the complainant to be examined by way of an affidavit for the purpose of inquiry under Section 202. He suggested that Section 202 (2) should be read along with Section 145 and in respect of complaints under Section 138, the examination of witnesses also should be permitted on affidavit. Only in exceptional cases, the Magistrate may examine the witnesses personally. Section 145 of the Act is an exception to Section 202 in respect of examination of the complainant by way of an affidavit. There is no specific provision in relation to examination of the witnesses also on affidavit in Section 145. It becomes clear that Section 145 had been inserted in the Act, with effect from the year 2003, with the laudable object of speeding up trials in complaints filed under Section 138. If the evidence of the complainant may be given by him on affidavit, there is no reason for insisting on the evidence of the witnesses to be taken on oath. On a holistic reading of Section 145 along with Section 202, we hold that Section 202 (2) of the Code is inapplicable to complaints under Section 138 in respect of examination of witnesses on oath. The evidence of witnesses on behalf of the complainant shall be permitted on affidavit. If the Magistrate holds an inquiry himself, it is not compulsory that he should examine witnesses. In suitable cases, the Magistrate can examine documents for satisfaction as to the sufficiency of grounds for proceeding under Section 202."

8. Once the Hon'ble Apex Court has propounded the law that the requirement of recording of statement U/s 200 & 202 Cr.P.C. are not required and summoning can be made in exercise as per section 145 of N.I. Act on the basis of evidence on affidavit, thus, the contention so sought to be raised by the learned counsel for the applicant on the first issue is dispelled . As regards the second submission of learned counsel for the applicant that the order summoning the applicant is illegal and the same is also out of context particularly in view of the fact that here once the statement U/s 200 & 202 Cr.P.C. has not been recorded then the allegation of infraction of section 204 Cr.P.C. does not in any manner whatsoever apply. Thirdly, with respect to the submission of learned counsel for the applicant that the statutory demand notice was sent on a different address that is an address where the applicant does not reside is concerned the same is a matter of trial which cannot be gone into at this stage in the present proceeding. Moreover, there is nothing on record even worth consideration at the stage of summoning so as to except the contention of counsel for the applicant.

9. At this stage, learned counsel for the applicant has further contended that the price so sought to be quoted of the vehicle in question is quite exorbitant and not as per the market value is concerned, these are the issues which are not to considered at the stage of summoning. Moreover, the presumption U/s 139 of N.I. Act is in favour of the opposite party no.2/ complainant. Last but not the least the summoning order is of the year, 2020, and the application has been preferred in the year 2025, thus it would not be appropriate for this Court to throttle the investigation particularly when the case is triable.

10. Accordingly, no good ground to interfere in the matter and the application is hereby rejected. Order Date :- 26.5.2025 C. MANI (Vikas Budhwar,J.)

1. Sri R.S. Pandey, learned counsel for the applicant and Sri Moti Lal, learned AGA for the State.

2. This is an application U/s 528 BNSS filed for quashing the complaint case no. 23489 of 2020 (1254 of 2023) (Sanjay Kumar Pandey vs. Ashish Kumar Dubey) U/s 138 of N.I. Act, P.S. Bhelupur, District Varanasi including summoning order dated 24.12.2020 pending in the court of ACJM, III, Varanasi.

3. The case of the applicant is that on 01.12.2020 a complaint was lodged by the opposite party no.2 against the applicant U/s 138 of N.I. Act with an allegation that with respect to purchase of a four wheeler which is claimed to be owned by the applicant, the opposite party no.2 had made a payment of Rs. 4,86,500/- and when the vehicle was not transferred in the name of opposite party no.2 then the opposite party no.2 sought refund of the said amount and the applicant had drawn a cheque bearing no. 000017 dated 03.10.2020 of an amount of Rs. 4,86,500/- which on presentation in the bank was dishonoured on 06.10.2020, a statutory notice stated to have been issued on 29.10.2020, despite service when the payments were not paid, so on 01.12.2020 the complaint was lodged. Thereafter, on 24.12.2020 the court of ACJM, court no.3 Varanasi in complaint case no. 23489 of 2020 summoned the applicant U/s 138 of N.I. Act. Questioning the summoning order, the applicant has filed the present application.

4. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for a single moment for more than one reason. Firstly, the statement U/s 200 & 202 Cr.P.C. all the witnesses have not been recorded however, on the basis of the evidence on affidavit, the applicant has been summoned. Secondly, as per sub-section 2 of Section 204 Cr.P.C., it is mandatory that no summons or warrants shall be issued against the accused under sub-section 1 until a list of the prosecution witnesses has been filed. The submission that the statement has not been furnished with the list of witnesses. Thirdly, the statutory legal notice is though dated 29.10.2020, however, the same has been sent on an incorrect address as in this regard, reference has been made to the LIC policies so as to content that the opposite party no.2 used to be a LIC agent and he had done LIC of the applicant and his family members and he was well known about the address. Thus, it is submitted that the summoning order cannot be sustained.

5. Learned AGA on the other hand submits that once the cheque stood drawn which was dishonoured then the presumption U/s 139 of N.I. Act would be in favour of the holder of the cheque. He further submits that the summoning order dated 24.12.2020 whereas the present application has been presented in the month of May, 2025, thus, post lapse of five years in absence of any plausible explanation, this Court may not interfere at this stage.

6. I have heard the submissions so made across the bar and perused the record carefully.

7. Apparently, the applicant has been summoned U/s 138 of N.I. Act on the allegations that a cheque bearing no. 000017 dated 03.10.2020 of an amount of Rs. 4,86,500/- was dishonoured followed by a statutory demand notice dated 29.10.2020 and the complaint dated 01.12.2020. So far as the first contention of the learned counsel for the applicant that in absence recording of statement U/s 200 & 202 Cr.P.C., the applicant has been summoned is concerned, the same is out of the context for the simple reason that a larger bench of the Hon'ble Apex Court in the case of expeditious trial of cases U/s 138 of N.I. Act 1881 in Re: (2021) 16 SCC 116 had the occasion to consider the said aspect of the matter wherein paragraph nos.10 to 12 the following was observed: "10. Section 202 of the Code confers jurisdiction on the Magistrate to conduct an inquiry for the purpose of deciding whether sufficient grounds justifying the issue of process are made out. The amendment to Section 202 of the Code with effect from 23.06.2006, vide Act 25 of 2005, made it mandatory for the Magistrate to conduct an inquiry before issue of process, in a case where the accused resides beyond the area of jurisdiction of the court. (See: Vijay Dhanuka & Ors. v. Najima Mamtaj & Ors.1, Abhijit Pawar v. Hemant Madhukar Nimbalkar and Anr.2 and Birla Corporation Limited v. Adventz Investments and Holdings Limited & Ors.). There has been a divergence of opinion amongst the High Courts relating to the applicability of Section 202 in respect of complaints filed under Section 138 of the Act. Certain cases under Section 138 have been decided by the High Courts upholding the view that it is mandatory for the Magistrate to conduct an inquiry, as provided in Section 202 of the Code, before issuance of process in complaints filed under Section 138. Contrary views have been expressed in some other cases. It has been held that merely because the accused is residing outside the jurisdiction of the court, it is not necessary for the Magistrate to postpone the issuance of process in each and every case. Further, it has also been held that not conducting inquiry under Section 202 of the Code would not vitiate the issuance of process, if requisite satisfaction can be obtained from materials available on record.

11. The learned Amici Curiae referred to a judgment of this Court in K.S. Joseph v. Philips Carbon Black Ltd & Anr. where there was a discussion about the requirement of inquiry under Section 202 of the Code in relation to complaints filed under Section 138 but the question of law was left open. In view of the judgments of this Court in Vijay Dhanuka (supra), Abhijit Pawar (supra) and Birla Corporation (supra), the inquiry to be held by the Magistrate before issuance of summons to the accused residing outside the jurisdiction of the court cannot be dispensed with. The learned Amici Curiae recommended that the Magistrate should come to a conclusion after holding an inquiry that there are sufficient grounds to proceed against the accused. We are in agreement with the learned Amici.

12. Another point that has been brought to our notice relates to the interpretation of Section 202 (2) which stipulates that the Magistrate shall take evidence of the witness on oath in an inquiry conducted under Section 202 (1) for the purpose of issuance of process. Section 145 of the Act provides that the evidence of the complainant may be given by him on affidavit, which shall be read in evidence in any inquiry, trial or other proceeding, notwithstanding anything contained in the Code. Section 145 (2) of the Act enables the court to summon and examine any person giving evidence on affidavit as to the facts contained therein, on an application of the prosecution or the accused. It is contended by the learned Amici Curiae that though there is no specific provision permitting the examination of witnesses on affidavit, Section 145 permits the complainant to be examined by way of an affidavit for the purpose of inquiry under Section 202. He suggested that Section 202 (2) should be read along with Section 145 and in respect of complaints under Section 138, the examination of witnesses also should be permitted on affidavit. Only in exceptional cases, the Magistrate may examine the witnesses personally. Section 145 of the Act is an exception to Section 202 in respect of examination of the complainant by way of an affidavit. There is no specific provision in relation to examination of the witnesses also on affidavit in Section 145. It becomes clear that Section 145 had been inserted in the Act, with effect from the year 2003, with the laudable object of speeding up trials in complaints filed under Section 138. If the evidence of the complainant may be given by him on affidavit, there is no reason for insisting on the evidence of the witnesses to be taken on oath. On a holistic reading of Section 145 along with Section 202, we hold that Section 202 (2) of the Code is inapplicable to complaints under Section 138 in respect of examination of witnesses on oath. The evidence of witnesses on behalf of the complainant shall be permitted on affidavit. If the Magistrate holds an inquiry himself, it is not compulsory that he should examine witnesses. In suitable cases, the Magistrate can examine documents for satisfaction as to the sufficiency of grounds for proceeding under Section 202."

8. Once the Hon'ble Apex Court has propounded the law that the requirement of recording of statement U/s 200 & 202 Cr.P.C. are not required and summoning can be made in exercise as per section 145 of N.I. Act on the basis of evidence on affidavit, thus, the contention so sought to be raised by the learned counsel for the applicant on the first issue is dispelled . As regards the second submission of learned counsel for the applicant that the order summoning the applicant is illegal and the same is also out of context particularly in view of the fact that here once the statement U/s 200 & 202 Cr.P.C. has not been recorded then the allegation of infraction of section 204 Cr.P.C. does not in any manner whatsoever apply. Thirdly, with respect to the submission of learned counsel for the applicant that the statutory demand notice was sent on a different address that is an address where the applicant does not reside is concerned the same is a matter of trial which cannot be gone into at this stage in the present proceeding. Moreover, there is nothing on record even worth consideration at the stage of summoning so as to except the contention of counsel for the applicant.

9. At this stage, learned counsel for the applicant has further contended that the price so sought to be quoted of the vehicle in question is quite exorbitant and not as per the market value is concerned, these are the issues which are not to considered at the stage of summoning. Moreover, the presumption U/s 139 of N.I. Act is in favour of the opposite party no.2/ complainant. Last but not the least the summoning order is of the year, 2020, and the application has been preferred in the year 2025, thus it would not be appropriate for this Court to throttle the investigation particularly when the case is triable.

10. Accordingly, no good ground to interfere in the matter and the application is hereby rejected. Order Date :- 26.5.2025 C. MANI (Vikas Budhwar,J.)