Uttarakhand High Court
Applicants vs State Of Uttarakhand And Another on 16 April, 2024
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
HIGH COURT OF UTTARAKHAND AT
NAINITAL
THE HON'BLE SRI JUSTICE RAKESH THAPLIYAL
16th April, 2024
Criminal Misc. Application No. 625 of 2024
M/s Sky Flair Hotel and Resort Pvt. Ltd. And Another
........Applicants
Versus
State of Uttarakhand and Another ....Respondents
with
Criminal Misc. Application No. 628 of 2024
M/s Sky Flair Hotel and Resort Pvt. Ltd. And Another
........Applicants
Versus
State of Uttarakhand and Another ....Respondents
Counsel for the Applicants : Mr. C.K. Sharma, learned counsel
Counsel for the State : Mr. V.K.Gemini, learned Dy. A.G. along
with Mr. Saurabh Pande, learned Brief
Holder
Hon'ble Rakesh Thapliyal, J. (Oral)
1. These two C-482 petitions are raising the
identical question i.e. whether before taking cognizance on
the complaint moved under Section 138 of the Negotiable
Instruments Act, the procedure as prescribed under
Section 202 Cr.P.C is mandatory or not?
2. The complaint was moved by the respondents
under Section 138 of the Negotiable Instruments Act
wherein the learned Trial Court has taken cognizance and
being aggrieved with the same, the present C-482 petitions
have been preferred by the applicants under Section 482
Cr.P.C. The main ground of challenge of these C-482
petitions is that the applicant is residing outside the
territorial jurisdiction of the court concerned, despite this
without following the procedure as prescribed under
Section 202 Cr.P.C., the learned Trial Court has taken
cognizance on the complaint of the respondent moved
under Section 138 of the Negotiable Instruments Act and
the applicant has been summoned.
3. In reference to this, learned counsel for the
applicant placed reliance on the judgment rendered by the
Hon'ble Apex Court in Suo moto Writ Petition (Crl.) No. 02
of 2020 in Re: EXPEDITIOUS TRIAL OF CASES UNDER
SECTION 138 OF THE N.I. Act, 1881 decided on
16.04.2021, wherein the Hon'ble Apex Court having relied
upon the judgment in the case of Birla Corporation
Limited vs. Adventz Investments and holdings
Limited and others, (2019) 16 SCC 610, held that 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. Para-11 of the said
judgment is reproduced as hereunder:
"11. The learned Amicus 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.
4. Apart from this, learned counsel for the applicant
also placed reliance on another judgment of the Bombay
High Court in the case of Bansilal S. Kabra vs. Global
Trade Finance Ltd. and another, Criminal Application No.
1344 of 2010, wherein the Bombay High Court has placed
reliance on the judgment of the Hon'ble Supreme Court in
Suo moto Writ Petition (Crl.) No. 02 of 2020 in Re:
EXPEDITIOUS TRIAL OF CASES UNDER SECTION 138 OF
THE N.I. Act, 1881 decided on 16.04.2021.
5. This Court has also taken similar view in C-482
No. 18 of 2024 wherein on 09.01.2024; the proceedings
were stayed, wherein it has been observed by this Court
that before taking cognizance on the complaint moved
under Section 138 of Negotiable Instruments Act, the
procedures as required under Section of 202 of Cr.P.C is
mandatory in nature. All these aspects are required
deliberations for which counter of respondents is
necessary.
6. Mr. Gemini, learned Deputy Advocate General for
the State accepts notice on behalf of respondent no.1.
7. Issue notice to the respective private respondent
no. 2. Steps within two weeks returnable within four weeks
with the acknowledgment due.
8. The respondents shall file counter affidavit within
four weeks.
9. Rejoinder affidavit to be filed within two weeks
thereafter.
10. List this case on 13.05.2024 along with C482
applications No. 347 of 2024, C482 No. 18 of 2024 and
other matter of same issue in which identical issues are
involved.
11. In the meantime, further proceedings of Criminal
Case No. 141 of 2023 'Corbett Ratan vs. Sky Flair Hotel
and Resort and another' and Criminal Case No. 81 of 2023
'Corbett Ratan vs. Sky Flair Hotel and Resort and another'
pending in the court of Judicial Magistrate, Ranikhet,
District Almora, shall remain stayed.
___________________________
Rakesh Thapliyal, J.
Dt: April 16, 2024
PR
