Uttarakhand High Court
Modinagar Paper Mills Ltd vs State Of Uttarakhand And Another 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. 335 of 2024
Modinagar Paper Mills Ltd.
And others ........Applicants
Versus
State of Uttarakhand and another ....Respondents
Counsel for the Applicant : Mr. Shailendra Singh Chauhan,
learned counsel
Counsel for the State : Mr. V.K.Gemini, learned Dy. A.G.
Hon'ble Rakesh Thapliyal, J. (Oral)
1. By the instant C-482 petition, the present
applicants are challenging the proceedings of Complaint
Case No. 4427 of 2018, M/s Aarnav Sales Corporation vs.
Modinagar Paper Mills Ltd. and others, wherein the
proceedings under Section 138 of Negotiable Instruments
Act have been initiated against the applicants. This
proceeding is pending in the court of learned 8th Additional
Civil Judge(S.D)/Additional Chief Judicial Magistrate,
Dehradun.
2. It is submitted by the learned counsel for the
applicants that all the applicants residing outside of the
territorial jurisdiction of the court concerned, despite this,
before taking cognizance on the complaint moved by the
respondent under Section 138 of Negotiable Instruments
Act, the procedure as prescribed under Section 202 Cr.P.C.
has not been followed which in fact is mandatory in
nature. In reference to this, learned counsel for the
applicants 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.
3. Apart from this, learned counsel for the
applicants 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 Hon'ble 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.
4. Apart from this, learned counsel for the
applicants submits that the applicant no.1 is not a
signatory of the cheque which was dishonoured regarding
which the complaint was filed.
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 respondent no.2. Steps within
two weeks returnable within three 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 No. 4427 of 2018, M/s Aarnav Sales
Corporation vs. Modinagar Paper Mills Ltd. and others,
pending in the court of 8th Additional Civil Judge
(S.D.)/Additional Chief Judicial Magistrate, Dehradun shall
remain stayed.
___________________________
Rakesh Thapliyal, J.
Dt: March 21, 2024
Nahid/
