Uttarakhand High Court
Dr. Rakesh Chandra Rastogi vs State Of Uttarakhand And Others on 21 March, 2024
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
HIGH COURT OF UTTARAKHAND AT
NAINITAL
THE HON'BLE SRI JUSTICE RAKESH THAPLIYAL
21st March, 2024
Criminal Misc. Application No. 347 of 2024
Dr. Rakesh Chandra Rastogi ........Applicant
Versus
State of Uttarakhand and others ....Respondents
with
Criminal Misc. Application No. 345 of 2024
Dr. Rakesh Chandra Rastogi ........Applicant
Versus
State of Uttarakhand and others ....Respondents
with
Criminal Misc. Application No. 346 of 2024
Dr. Rakesh Chandra Rastogi ........Applicant
Versus
State of Uttarakhand and others ....Respondents
with
Criminal Misc. Application No. 348 of 2024
Dr. Rakesh Chandra Rastogi ........Applicant
Versus
State of Uttarakhand and others ....Respondents
with
Criminal Misc. Application No. 349 of 2024
Dr. Rakesh Chandra Rastogi ........Applicant
2
Versus
State of Uttarakhand and others ....Respondents
with
Criminal Misc. Application No. 350 of 2024
Dr. Rakesh Chandra Rastogi ........Applicant
Versus
State of Uttarakhand and others ....Respondents
with
Criminal Misc. Application No. 351 of 2024
Dr. Rakesh Chandra Rastogi ........Applicant
Versus
State of Uttarakhand and others ....Respondents
with
Criminal Misc. Application No. 352 of 2024
Dr. Rakesh Chandra Rastogi ........Applicant
Versus
State of Uttarakhand and others ....Respondents
with
Criminal Misc. Application No. 353 of 2024
Dr. Rakesh Chandra Rastogi ........Applicant
Versus
State of Uttarakhand and others ....Respondents
with
Criminal Misc. Application No. 354 of 2024
Dr. Rakesh Chandra Rastogi ........Applicant
Versus
State of Uttarakhand and others ....Respondents
3
with
Criminal Misc. Application No. 355 of 2024
Dr. Rakesh Chandra Rastogi ........Applicant
Versus
State of Uttarakhand and others ....Respondents
with
Criminal Misc. Application No. 361 of 2024
Dr. Rakesh Chandra Rastogi ........Applicant
Versus
State of Uttarakhand and others ....Respondents
with
Criminal Misc. Application No. 362 of 2024
Dr. Rakesh Chandra Rastogi ........Applicant
Versus
State of Uttarakhand and others ....Respondents
Counsel for the Applicant : Mr. Aditya Singh, learned counsel
Counsel for the State : Mr. V.K.Gemini, learned Dy. A.G.
Hon'ble Rakesh Thapliyal, J. (Oral)
1. All these bunch of 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 applicant under Section 482
Cr.P.C. The main ground of challenge of all these bunch of
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
nos. 2 & 3. 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.
11. In the meantime, further proceedings of
Complaint Case Nos. 5617 of 2023, Sudha Ahluwalia v.
Khatema Fibres and others; Complaint Case No. 5608 of
2023, Sudha Ahluwalia v. Khatema Fibres and others;
Complaint Case No. 5616 of 2023, Future Fibres v.
Khatema Fibres and others; Complaint Case No. 5611 of
2023, Sudha Ahluwalia v. Khatema Fibres and others;
Complaint Case No. 5620 of 2023, Future Fibres v.
Khatema Fibres and others; Complaint Case No. 6491 of
2023, Future Fibres v. Khatema Fibres and others;
Complaint Case No. 5607 of 2023, Sudha Ahluwalia v.
Khatema Fibres and others; Complaint Case No. 5614 of
2023, Sudha Ahluwalia v. Khatema Fibres and others;
Complaint Case No. 6492 of 2023, Future Fibres v.
Khatema Fibres and others; Complaint Case No. 5621 of
2023, Future Fibres v. Khatema Fibres and others;
Complaint Case No. 5610 of 2023, Sudha Ahluwalia v.
Khatema Fibres and others; Complaint Case No. 5622 of
2023, Future Fibres v. Khatema Fibres and others and
Complaint Case No. 6488 of 2023, Future Fibres v.
Khatema Fibres and others, all pending in the court of 8th
Additional Senior Civil Judge/Additional Chief Judicial
Magistrate, Dehradun shall remain stayed.
___________________________
Rakesh Thapliyal, J.
Dt: March 21, 2024
Nahid/
