Punjab-Haryana High Court
M/S Satya Kesari And Another vs Dainik Bhaskar Through Its Recovery ... on 15 January, 2025
Neutral Citation No:=2025:PHHC:004971
CRM-M-1756-2025 -1-
128
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-1756-2025 (O&M)
Date of decision: 15.01.2025
M/s Satya Kesari and another
... Petitioners
Vs.
Dainik Bhaskar, having its office at Panipat
... Respondent
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Mr. Jagdish Manchanda, Advocate,
Mr. Nischal Manchanda, Advocate,
Mr. Saksham Kaushik, Advocate,
Mr. Yogit Mehta, Advocate,
Mr. Divyansh, Advocate
for the petitioners.
*******
HARPREET SINGH BRAR, J. (ORAL)
1. Present petition has been preferred under Section 482 of the Code
of Criminal Procedure, 1973 (for short 'Cr.P.C.') [now Section 528 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (for short 'BNSS')] seeking
quashing of complaint bearing NACT No.4209 of 2023 dated 18.12.2023 titled
as 'Dainik Bhaskar Vs. M/s Satya Kesari and another' filed under Sections
138/142 of the Negotiable Instruments Act, 1881 (for short 'NI Act')
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(Annexure P-1) as well as summoning order dated 19.01.2024 (Annexure P-2)
passed by learned Judicial Magistrate 1st Class, Panipat and all the subsequent
proceedings arising therefrom.
2. Briefly, the facts, as alleged by the respondent-complainant, are
that it is publishing and circulating daily newspaper under the name and style
of Dainik Bhaskar from Panipat (Haryana) and Mohinder Sharma is Recovery
Manager of the same and as per resolution dated 12.05.2014, he is duly
authorized to file, sign and contest the complaint (supra). It is alleged that the
petitioners executed an agreement/contract dated 01.03.2021 with the
respondent regarding production/publication of his daily newspaper namely
Satya Kesari and as per the aforesaid agreement/contract, the respondent
printed newspaper from 01.04.2020 till 10.05.2021. The respondent asked for
the payment from the month of April, 2021 for clearing the due amount of
Rs.1.50 lacs and on the request of the petitioners for concession/discount, it
was settled that the petitioners will pay Rs.1.10 lacs. Thereafter, in order to
discharge his liabilities, the petitioners issued a part-payment cheque bearing
No.187416 dated 10.10.2023 for Rs.11,000/- of Punjab National Bank, Sadar
Bazar, Karnal. When the said cheque was presented by the respondent for
clearance with its banker IDBI Bank, GT Road, Panipat, the same was
dishonoured with the remarks "payment stopped by the drawer" vide memo
dated 03.10.2023. When the respondent informed the petitioners about the
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same and demanded the cheque amount, they turned down its request.
Thereafter, a legal notice dated 23.10.2023 (Annexure P-7) was served by the
respondent upon the petitioners through its counsel, demanding the cheque
amount, to which the petitioners sent a false and fabricated reply and alleged
that the legal notice was just to grab the money. When the petitioners failed to
pay the cheque amount to the respondent, the complaint (supra) was instituted.
3. Learned counsel for the petitioners, inter alia, contends that vide
agreement dated 01.04.2023 (Annexure P-3), the respondent agreed for
publishing, marketing and distribution of flyers, broachers and advertising
promotional material of the petitioners through its distribution network and it
was mentioned in the said agreement that it will automatically terminated on
31.03.2024. However, no work has been allotted to the petitioners and the
cheques, which were given in security, were presented by the respondent. It is
further contended that earlier an agreement dated 01.03.2021 (Annexure P-4)
was executed between the petitioners and the respondent, which was from
01.03.2021 to 28.02.2022. However, on 27.04.2021, Karambir Singh, an
authorized person of the respondent-firm stated that management of the
respondent-company stopped printing job on the basis of credit, as per terms
and conditions of the agreement dated 01.03.2021 (Annexure P-4) and further
printing job for the petitioners would be done on advance payment basis and
stopped printing job before the expiry of the said agreement. As such, the
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respondent, by concealing the agreement dated 01.04.2023 (Annexure P-3),
has manipulated the earlier agreement dated 01.03.2021 (Annexure P-4).
3. Learned counsel for the petitioners further contends that the
petitioners, in order to avoid any monetary loss, stopped the payment of
cheques given in security, as there was an apprehension that after the breach of
said agreement, the respondent would misuse the security cheques. The
petitioners sent a legal notice dated 21.04.2023 (Annexure P-5) to the
respondent not to misuse the post-dated cheques given in security. The
respondent replied the said legal notice (Annexure P-5) by stating that an
amount of Rs.1.10 lacs for the month of April, 2021 is due to be paid by the
petitioners, as discernible from Annexure P-6. However, the cheques in
question were given as per agreement dated 01.04.2023. When the cheques in
question were presented by the respondent to recover the amount of Rs.1.10
lacs, the same were dishonoured with the remarks 'Payment Stopped by
Drawer' vide memo dated 13.06.2023 of IDBI Bank. Thereafter, the
respondent served a legal notice dated 23.10.2023 (Annexure P-7) upon the
petitioners by demanding the amount of Rs.1.10 lacs and the petitioners sent a
false and fabricated reply on 28.06.2023 (Annexure P-8), alleging that the legal
notice was just to grab money. After that, the petitioners filed a complaint
dated 01.07.2023 (Annexure P-9/T) against aforesaid the authorized persons of
the respondent-company, with a request to take legal action against them for
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committing the offence of cheating and for blackmailing. It is thus contended
that the complaint (supra) (Annexure P-1) as well as the summoning order
dated 19.01.2024 (Annexure P-2) are liable to be quashed.
4. Having heard learned counsel for the petitioners and after perusing
the record of the case, it transpires that the drill of Section 202 of Cr.P.C. (now
Section 225 of BNSS) was not followed before issuance of process.
5. A study of Section 202 of Cr.P.C. (now Section 225 of BNSS) is
called for, which is reproduced below:
Section 225. 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 212, 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 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 223.
(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
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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 Sanhita on an officer in charge of a
police station except the power to arrest without warrant."
6. Time and again, the constitutional Courts have reiterated that the
drill of Section 202 of Cr.P.C. (now Section 225 of BNSS) is mandatory in na-
ture. A two Judges Bench of the Hon'ble Supreme Court in Abhijit Pawar Vs.
Hemant Madhukar, 2017(3) SCC 528, speaking through Justice A.K. Sikri,
has held as follows:
"28. No doubt, the argument predicated on Section 202 of the
Cr.P.C. was raised for the first time by A-1 before the High Court.
Notwithstanding the same, being a pure legal issue which could be
tested on the basis of admitted facts on record, the High Court
could have considered this argument on merits. It is a settled
proposition of law that a pure legal issue can be raised at any
stage of proceedings, more so, when it goes to the jurisdiction of
the matter (See : National Textile Corpn. Ltd. Vs. Nareshkumar
Badrikumar Jagad; [(2011) 12 SCC 695].
29. We may like to record that though Mr. Bhatt had refuted the ar-
guments founded on Section 202 of Cr.P.C., even he had submitted
that in case this Court is satisfied that mandatory requirement
of Section 202 is not fulfilled by the learned Magistrate before is-
suing the process, this Court can direct the Magistrate to do so.
Mr. Bhatt, for this purpose, referred to the judgment in the case of
the National Bank of Oman.
30. For the aforesaid reasons, Criminal Appeal arising out of SLP
(Crl) No. 9318 of 2012 is allowed thereby quashing the notice
dated 24 th November, 2009 in respect of A-1 with direction to the
learned Magistrate to take up the matter afresh qua A-1 and pass
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necessary orders as are permissible in law, after following the
procedure contained in Section 202, Cr.P.C."
7. Reliance in this regard can also be placed on the judgments ren-
dered by the Hon'ble Supreme Court in National Bank of Oman Vs. Barakara
Abdul Aziz and another, 2013(2) SCC 488 and by this Court in Dr. Jasminder
Kaur Vs. Raj Karan Singh Boparai, CRM-M-20260-2008.
8. This issue has also been dealt with by the Constitution Bench of
the Hon'ble Supreme Court In re: Expeditious Trial of Cases under Section
138 of NI Act 1881 in Suo Moto Writ Peition (Crl.) No.2 of 2020 and analysed
the said issue and concluded as follows:
"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,
Abhijit Pawar v. Hemant Madhukar Nimbalkar and Anr. 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
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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." (emphasis added)
9. Furthermore, the following directions were issued in In re:
Expeditious Trial of Cases under Section 138 of NI Act 1881 (supra):
"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.
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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
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issue relating to expeditious disposal of complaints under
Section 138 of the Act shall also be considered by the
Committee."(emphasis added)
10. The intention behind Section 202 of Cr.P.C. (now Section 225 of
BNSS) is to ensure that sufficient grounds exist in order to proceed against an
accused in a private complaint. As such, it is pertinent that the concerned Court
passes an order indicating substantial compliance of the aforementioned
provision, in view of the directions issued in In re: Expeditious Trial of Cases
under Section 138 NI Act 1881 (supra). Learned jurisdictional Court shall
pass an order satisfying the objective standard of reasons and justice and record
its satisfaction under Section 202 of Cr.P.C. (now Section 225 of BNSS) that
sufficient grounds exist against the accused. However, the formation of the
opinion in this regard can be based upon the documents available on record
and the evidence of the witnesses for the complainant can be taken by way of
an affidavit.
11. Accordingly, in view of the dictum in In re: Expeditious Trial of
Cases under Section 138 of NI Act 1881 (supra) and the order dated
13.01.2025 passed by this Court in CRM-M-1164-2025 (Subham Valia @
Shubham Walia Vs. Sarthak Blenders & Bottlers Pvt. Ltd. and others),
present petition is disposed of and the impugned summoning order dated
19.01.2024 (Annexure P-2) passed by learned Judicial Magistrate 1st Class,
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Panipat, is hereby set aside. The matter is remanded back to concerned Court to
consider the matter afresh, in accordance with law, by taking recourse to
Section 202 of Cr.P.C. (now Section 225 of BNSS).
[ HARPREET SINGH BRAR ]
15.01.2025 JUDGE
vishnu
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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