Uttarakhand High Court
Mr. P.C. Petshali vs Danish on 19 May, 2023
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C482 No. 989 of 2023
Hon'ble Sharad Kumar Sharma, J.
Mr. P.C. Petshali, Advocate, for the
applicant.
The applicant, in the present C-482
Application, has put a challenge to the complaint
case proceedings of Complaint Case No. 146 of
2021, M/s Cholamandalam Investment Finance Co.
Ltd. Vs. Danish, which are the proceedings drawn
under Section 138 of the N.I. Act.
The challenge to the summoning order dated
th
19 January, 2021, is simplicitor on the ground, that
as the applicant is the resident of the territory
outside the jurisdiction of the Court, who has taken
cognizance, there has had to be compliance of the
provisions contained under Section 202 of the
Cr.P.C.
The provisions contained under Section 202
of the Cr.P.C., it prescribes a procedure, which is
required to be followed by the Court prior to
issuance of the summoning order against the
accused person, who is a resident outside the
territorial jurisdiction of the Court ceased with the
proceedings. Section 202 of the Cr.P.C. itself
provides different modes, in which, the inquiry
could be permitted to be conducted and the use of
word 'as he may thinks" is an exclusive prerogative
vested with the Magistrate concerned to conduct the
inquiry, who can do it himself or through any other
agencies as contemplated under Section 202 of the
Cr.P.C.
The allegation levelled by the applicant, that
the provisions contained under Section 202 of the
Cr.P.C., has not been complied with, and in relation
thereto, he makes reference to a judgment of this
Court, as rendered by this Court in Criminal Misc.
Case No. 1261 of 2021, M/s Bharat Krishi Beej
Bhandar and another Vs. M/s Naini Seed Product,
Ramnagar, and particularly, he makes reference to
para 14 of the said judgement, which is extracted
hereunder :-
"14. I am of the view that mere perusal of a
document, while referring the same in the summoning order,
will not amount to be conducting an inquiry, or recording
the satisfaction, or arriving at a logical conclusion with a
logical application of mind because otherwise this
observation that having gone through the record could be
mis-utilized by the judicial officer who are seized with the
proceedings under Section 138 of the Negotiable
Instruments Act, where the provisions of Section 202 of
Cr.P.C. has been made applicable by the judgment of the
Constitution Bench, in the matters of Suo Moto Writ Petition
(Crl.) No.2 of 2020. Since all these facets are not shown to
have been adhered to by the court of Additional Chief
Judicial Magistrate, because neither it reflects an inquiry
nor does the impugned order reflects a satisfaction recorded
by the court, which cannot be read as a synonymous to the
ratio laid by the Constitutional Bench, merely because the
Court has perused the record, that would justify the
satisfaction and because of the apparent fact that it does not
reflect, that the Court has given any logical reasons to
arrive at a conclusion to justify the issuance of process to
the opposite party, who is resident of outside the territorial
jurisdiction of the Court, the summoning order of
31.03.2021, would be in apparent violation of the judgment
of the Constitution Bench in Suo Moto Writ Petition (Crl.)
No.02 of 2020 and as per the provisions of Section 202 of
Cr.P.C. itself. In that eventuality and for the reasons
aforesaid when apparently on a simplicitor perusal of the
impugned order of 31.03.2021, when it does not satisfies the
aspects of an inquiry, satisfaction and arrival at a logical
and rationale conclusion by the Court under Section 202 of
Cr.P.C. which is not apparently shown to be established.
Hence, the impugned summoning order of 31.03.2021, is
hereby quashed. The C-482 Application is accordingly,
allowed. The matter is remitted back to the court of
Additional Chief Judicial Magistrate, Ramnagar, District
Nainital, to pass a fresh order if required in the light of the
parameters laid down by the Constitution Bench of the
Hon'ble Apex Court, as referred to hereinabove."
This Court is of the view, that the said
observation made in the said judgment of
27.09.2022, was under altogether a different factual
backdrop, and this reasoning has been assigned by
this Court because if the summoning order dated
19th January, 2021, is taken into consideration, the
learned Court of Judicial Magistrate, Almora, has
opted out to resort to the first mode of inquiry as
contemplated under Section 202 of the Cr.P.C. by
conducting the inquiry itself, and that is why, the
observation has been made by the Court, that Court
has gone through the records, the details of which,
have been given in para 2 of the summoning order,
and thereafter, the Court has also assigned the logic
after scrutinization of the document and affidavit
filed in support thereto, while coming to the
conclusion as to whether cognizance for the offence
under Section 138 of the N.I. Act is required to be
made or not.
In view of the observation made by the Trial
Court, this Court is of the view, that the first
exception to Section 202 of the Cr.P.C. has already
been adhered to by the learned Magistrate, who
conducted the inquiry, and it may not be inferred as
to be, that it is a detailed investigation, which is
required to be conducted by the Magistrate after
examining of the witnesses, but rather it is an
exclusive satisfaction, which is required to be
recorded by the Court in order to ensure, that no
embarrassment is caused to the person, who has
been summoned and is a resident of the territory
outside the jurisdiction of the Court.
For the aforesaid reasons, I do not find that
the impugned summoning order dated 19th January,
2021, is in violation of the provisions contained
under Section 202 of the Cr.P.C.
Hence, the C482 Application lacks merit and
the same is accordingly dismissed.
(Sharad Kumar Sharma, J.)
Dated 19.05.2023
Shiv
