Vijay Dhanuka & Ors v. Najima Mamtaj & Ors

1. Heard Sri Dwijendra Prasad, learned counsel for the applicant as well as Sri Indrajeet Singh Yadav, learned A.G.A. for the State.

2. This is an application under Section 528 of BNSS preferred by the applicant for quashing the entire criminal proceedings as well as impugned summoning order dated 10.08.2018 passed by Chief Judicial Magistrate Mainpuri in criminal misc. case no. 3360 of 2018 (Shailendra Kumar v/s M/S Rajveer Singh through Proprietor) under section 138 of The Negotiable Instruments Act, Police station Karhal, District- Mainpuri.

3. Learned counsel for the applicant has submitted that post- lodging of a complaint under Section 138 of N.I. Act on

03.04.2018 with relation to dishonouring of a cheque for an amount of Rs.5,00,000/- dated 31.01.2018 bearing number "021050", a statutory notice was issued on 08.03.2018 and the complaint was lodged, thereafter the applicant came to be summoned under Section 138 of the N.I. Act on 10.08.2018. Learned counsel for the applicant submits that the statement under Section 202 of CrPC has not been recorded.

4. Learned A.G.A. on the other hand submits that in the proceedings under Section 138 of N.I. Act, there is no necessity of recording statement under Section 202 of CrPC.

5. I have heard the submissions so made across the Bar and perused the record carefully.

6. The Hon'ble Apex Court In Expeditious Trial of Cases under Section 138 of N.I. Act, 1881, (2021) 16 SCC 116, had the occasion to consider the said aspect and in paragraphs-10, 11 and 12, it was observed as under: "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.3). 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 Madhukar Nimbalkar and Anr. 2 and Birla Corporation Limited v. Adventz Investments and Holdings Limited & Ors.3). 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.4 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."

7. In view of the aforesaid decision of the Hon'ble Apex Court, there is no requirement of recording of statement under Section 202 CrPC in proceedings under Section 138 of N.I. Act.

8. Accordingly no case is made out.

9. At this state, learned counsel for the applicant submits that he may be permitted to apply for bail before the court below and the court below be directed to decide the same within time bound period.

10. Considering the submissions so made across the Bar, as well as the stand taken by the rival parties, the application stands consigned to record directing the applicant to submit a bail application before the court below and this Court has no reason to disbelieve that the court below shall decide the bail application with most expedition strictly in accordance with law. Order Date :- 8.7.2025 N.S.Rathour (Vikas Budhwar, J)

1. Heard Sri Dwijendra Prasad, learned counsel for the applicant as well as Sri Indrajeet Singh Yadav, learned A.G.A. for the State.

2. This is an application under Section 528 of BNSS preferred by the applicant for quashing the entire criminal proceedings as well as impugned summoning order dated 10.08.2018 passed by Chief Judicial Magistrate Mainpuri in criminal misc. case no. 3360 of 2018 (Shailendra Kumar v/s M/S Rajveer Singh through Proprietor) under section 138 of The Negotiable Instruments Act, Police station Karhal, District- Mainpuri.

3. Learned counsel for the applicant has submitted that post- lodging of a complaint under Section 138 of N.I. Act on

03.04.2018 with relation to dishonouring of a cheque for an amount of Rs.5,00,000/- dated 31.01.2018 bearing number "021050", a statutory notice was issued on 08.03.2018 and the complaint was lodged, thereafter the applicant came to be summoned under Section 138 of the N.I. Act on 10.08.2018. Learned counsel for the applicant submits that the statement under Section 202 of CrPC has not been recorded.

4. Learned A.G.A. on the other hand submits that in the proceedings under Section 138 of N.I. Act, there is no necessity of recording statement under Section 202 of CrPC.

5. I have heard the submissions so made across the Bar and perused the record carefully.

6. The Hon'ble Apex Court In Expeditious Trial of Cases under Section 138 of N.I. Act, 1881, (2021) 16 SCC 116, had the occasion to consider the said aspect and in paragraphs-10, 11 and 12, it was observed as under: "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.3). 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 Madhukar Nimbalkar and Anr. 2 and Birla Corporation Limited v. Adventz Investments and Holdings Limited & Ors.3). 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.4 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."

7. In view of the aforesaid decision of the Hon'ble Apex Court, there is no requirement of recording of statement under Section 202 CrPC in proceedings under Section 138 of N.I. Act.

8. Accordingly no case is made out.

9. At this state, learned counsel for the applicant submits that he may be permitted to apply for bail before the court below and the court below be directed to decide the same within time bound period.

10. Considering the submissions so made across the Bar, as well as the stand taken by the rival parties, the application stands consigned to record directing the applicant to submit a bail application before the court below and this Court has no reason to disbelieve that the court below shall decide the bail application with most expedition strictly in accordance with law. Order Date :- 8.7.2025 N.S.Rathour (Vikas Budhwar, J)