Uttarakhand High Court
Messers Kumaon Construction vs State Of Uttarakhand And Another on 11 August, 2023
HIGH COURT OF UTTARAKHAND
AT NAINITAL
C482 Application No. 1620 of 2023
Messers Kumaon Construction ... Applicant
Vs.
State of Uttarakhand and Another ... Respondents
And
C482 Application No. 1621 of 2023
Rajendra Kumar Joshi ... Applicant
Vs.
State of Uttarakhand and Another ... Respondents
Advocate: Ms. Reema Rana, Advocate, for the applicant
Mr. Atul Kumar Shah, Deputy Advocate General, for the
State.
Hon'ble Sharad Kumar Sharma, J.
These are two C482 Applications. C482 Application
No. 1620 of 2023, Messers Kumaon Construction Vs.
State of Uttarakhand and Another, has been preferred in
Criminal Case No. 3720 of 2021, Messers VMR Infratech
and Earth Movers Vs. Messers Kumaon Construction
Partner Rajendra Kumar Joshi, as against the summoning
order dated 06.08.2021, which has been issued by the
Court of Judicial Magistrate, 1st, Haldwani, District
Nainital, whereby the applicant had been summoned
under Section 138 of the Negotiable Instruments Act.
2. In the connected C482 Application No. 1621 of
2023, Rajendra Kumar Joshi Vs. State of Uttarakhand and
Another, in fact, it has got a common factual background
emanating from contractual obligations inter se between
the parties i.e. complainant and Messers Kumaon
Construction, but here the proceedings have been drawn
in an individual capacity against the present applicant by
way of Criminal Case No. 3718 of 2021, Messers VMR
Infratech and Earth Movers Vs. Rajendra Kumar Joshi,
which too happens to be a proceedings under Section 138
of the Negotiable Instruments Act.
3. In both the cases, the learned counsel for the
applicant has argued that the liability which has been
fastened upon the present applicant with regard to alleged
act of dishonor of the cheque, which is the subject matter
of consideration under Section 138 of N.I. Act, cannot be
attributed to the present applicant because of certain
factual background which has been attempted to be
argued by the learned counsel for the applicant in order to
cull out a case, that the summoning order itself would be
bad.
4. So far the proceedings under Section 138 of N.I. Act
are concerned, they are summary in nature and that is
why under sub Section (3) of Section 143 of the Act, they
are to be decided expeditiously. The expeditious trial of
Section 138 was an issue of concern before the Hon'ble
Apex Court, where a suo moto cognizance was taken by
the Constitution Bench of the Hon'ble Apex Court in a
judgment of Suo Moto Writ Petition (Crl.) No. 2 of
2020 as reported in 2021 SCC Online SC 325, wherein
particularly, the Hon'ble Apex Court has observed with
regard to the parameters which were required to be
adopted for the purposes of conducting an inquiry at the
stage when the summons were required to be issued.
5. The Hon'ble Apex Court has provided that a
meticulous investigation is not required to be made to
justify the issuance of the summoning order in a
proceeding under Section 138 of N.I. Act, because it is
exclusively the satisfaction of the Court which is to be
recorded, necessitating the summoning of an accused
person to be tried under Section 138 of the N.I. Act, and
even that satisfaction which has to be recorded by the
Magistrate is exclusively based upon the document which
is submitted before it at the initial stage; a detailed
scrutiny of examination of witnesses is not required to be
conducted by the trial Court for the purposes of issuing
summons to the accused person which in the instant case
happens to be by the impugned order dated 06.08.2021.
6. Since all the arguments which have been extended
by the learned counsel for the applicant were from the
stage when the cheque was dishonored on account of the
non-existence of an account as against which the cheque
has been issued, upto that stage it entails a consideration
of evidence in order to appropriately come to a conclusion
as to whether the cheque was validly issued against an
existing account or not, which cannot be ventured into at
the stage when the summoning order has been put to
challenge in C482 Application.
7. C482 Application would be confined to be considered
only when the summoning order in a complaint case
suffers from apparent legal vices and the legal vices which
have been sought to be derived by the learned counsel for
the applicant are based on a factual appreciation is not a
scope open to be argued under Section 482 of CrPC.
8. Since both the proceedings entail a consideration of
the proceedings under Section 138 of N.I. Act, and having
been registered as a complaint case, they are required to
be considered in the light of the judgment as rendered by
the Hon'ble Apex Court in the matters of Satender
Kumar Antil Vs. Central Bureau of Investigation and
Another, as reported in 2022 (10) SCC 51, and the
applicant in both the C482 Applications is relegated to
approach the Court of 1st Judicial Magistrate, Haldwani,
District Nainital, for resort to his grievance qua the
summoning order and its justification, if at all it is
required to be judicially scrutinized after appreciation of
evidence prior to the issuance of cheque which is said to
have been dishonored, which is the basis of issuance of
the summoning order in the case at hand.
9. Hence, the applicant to the C482 Applications is
relegated to resort to his remedy under the authority of
Satender Kumar Antil (supra), and if he surrenders within
a period of two weeks, obviously, it will be dealt with in
accordance with para 3(e) of the aforesaid judgment.
10. Subject to the aforesaid, C482 Applications stand
disposed of.
11. Let a copy of this judgment be placed in the
connected C482 Application.
(Sharad Kumar Sharma, J.)
11.08.2023
Mahinder/
