Allahabad High Court
Irshad Khan vs State Of U.P. And Another on 10 February, 2023
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 64
Case :- APPLICATION U/S 482 No. - 43987 of 2022
Applicant :- Irshad Khan
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Mohammad Asif,Ahmad Saeed
Counsel for Opposite Party :- G.A.,Prem Chandra Dwivedi
Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Mohammad Asif, learned counsel for the applicant; Sri Prem Chandra Dwivedi, learned counsel for the opposite party no.2 and learned AGA for the State.
2. The present 482 Cr.P.C. application has been filed to quash the entire proceedings of Complaint Case No. 9897 of 2022 (Salman Vs. Irshad Khan), under Section - 138 N.I. Act, Police Station - Mantola, District - Agra, pending in the court of A.C.J.M., Court No.4, Agra.
3. Short submission advanced is, no enquiry has been made under Section 202 Cr.P.C. before the learned Magistrate proceeded to issue summons to the applicant who clearly resides outside the territorial jurisdiction of the learned court below.
4. On fact, there is no dispute that the applicant resides outside the territorial jurisdiction of the learned court below inasmuch as the complainant himself chose to describe the address of the applicant to be at Kolkata, West Bengal.
5. Also, there is no dispute to the fact, no enquiry was made under Section 202 Cr.P.C. before issuing summons to the applicant, vide order dated 13.09.2022.
6. As to the legal requirement, Five Judge Bench of the Supreme Court in Re: Expeditious Trial Of Cases Under Section 138 Of N. I. Act 1881 has observed as under :
"24. The upshot of the above discussion leads us to the following conclusions:
1) The High Courts are requested to issue practice directions to the Magistrates to record reasons before converting trial of complaints under Section 138 of the Act from summary trial to summons trial.
2) Inquiry shall be conducted on receipt of complaints under Section 138 of the Act to arrive at sufficient grounds to proceed against the accused, when such accused resides beyond the territorial jurisdiction of the court.
3) For the conduct of inquiry under Section 202 of the Code, evidence of witnesses on behalf of the complainant shall be permitted to be taken on affidavit. In suitable cases, the Magistrate can restrict the inquiry to examination of documents without insisting for examination of witnesses.
4) We recommend that suitable amendments be made to the Act for provision of one trial against a person for multiple offences under Section 138 of the Act committed within a period of 12 months, notwithstanding the restriction in Section 219 of the Code.
5) The High Courts are requested to issue practice directions to the Trial Courts to treat service of summons in one complaint under Section 138 forming part of a transaction, as deemed service in respect of all the complaints filed before the same court relating to dishonour of cheques issued as part of the said transaction.
6) Judgments of this Court in Adalat Prasad (supra) and Subramanium Sethuraman (supra) have interpreted the law correctly and we reiterate that there is no inherent power of Trial Courts to review or recall the issue of summons. This does not affect the power of the Trial Court under Section 322 of the Code to revisit the order of issue of process in case it is brought to the court's notice that it lacks jurisdiction to try the complaint.
7) Section 258 of the Code is not applicable to complaints under Section 138 of the Act and findings to the contrary in Meters and Instruments (supra) do not lay down correct law. To conclusively deal with this aspect, amendment to the Act empowering the Trial Courts to reconsider/recall summons in respect of complaints under Section 138 shall be considered by the Committee constituted by an order of this Court dated 10.03.2021.
8) All other points, which have been raised by the Amici Curiae in their preliminary report and written submissions and not considered herein, shall be the subject matter of deliberation by the aforementioned Committee. Any other issue relating to expeditious disposal of complaints under Section 138 of the Act shall also be considered by the Committee."
7. No contrary direction is disclosed to have been issued by the Supreme Court till date.
8. In view of the above clear position in law, no useful purpose may be served in calling for a counter affidavit, at this stage.
9. Accordingly, the present application is allowed. At present, the summoning order dated 13.09.2022 is set aside and the matter is remitted to the learned court below to proceed in accordance with law.
Order Date :- 10.2.2023
Abhilash
