Bhim Singh vs Bhawan Dutt Bhatt on 27 February, 2026

2026:UHC:1453

Judgement Pronounced on: 27.02.2026
Judgement Reserved on: 15.12.2025
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Misc. Application No.1721 of 2022

Bhim Singh ......Applicant

Versus

Bhawan Dutt Bhatt .....Respondent

Presence: Mr. Sumit Bajaj, learned counsel for the Applicant.
Mr. B. S. Kathayat, learned counsel for the Respondent.

Hon'ble Ashish Naithani, J.

1. The This application under Section 482 of the Code of Criminal
Procedure has been filed by the Applicant for quashing the summoning
order dated 29.07.2022 passed by the Additional Chief Judicial
Magistrate, Khatima, District Udham Singh Nagar in Complaint Case
No.1012 of 2022 (Bhawan Dutt Bhatt vs. Bhim Singh) under Section
138 of the Negotiable Instruments Act, as well as the entire proceedings
arising therefrom.

2. The brief and undisputed background, as emerges from the
record, is that the Respondent filed a complaint under Section 138 of
the Negotiable Instruments Act alleging that he had paid a total amount
of Rs. 20 lakhs in cash to the Applicant for construction of a residential
house, and that upon failure of the Applicant to carry out the
construction, two cheques of Rs. 10 lakhs each dated 18.06.2022 were
issued, which on presentation were dishonoured due to insufficiency of
funds. After issuance of statutory notice and non-payment, the

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Criminal Miscellaneous Application No.1721 of 2022-----Bhim Singh vs. Bhawan Dutt Bhatt

Ashish Naithani J.
2026:UHC:1453

complaint was filed, whereupon the learned Magistrate, by order dated
29.07.2022, summoned the Applicant.

3. It is not in dispute that the Applicant is a resident of District
Nainital, whereas the complaint was filed and entertained by the court
at Khatima, District Udham Singh Nagar. It is also borne out from the
summoning order that before issuance of process, no enquiry or
investigation under Section 202 Cr.P.C. was conducted.

4. Heard learned counsel for the parties and perused the records.

5. Learned counsel for the Applicant assailed the impugned
summoning order primarily on the ground of mandatory non-
compliance of Section 202 Cr.P.C. It was submitted that the Applicant
is admittedly a resident of District Nainital, whereas the complaint was
filed before the court at Khatima, District Udham Singh Nagar. In such
circumstances, the Magistrate was statutorily bound to postpone
issuance of process and conduct an enquiry or direct investigation
before summoning the Applicant. The summoning order dated
29.07.2022, on the face of it, does not reflect that any such exercise was
undertaken, rendering the order illegal and unsustainable.

6. It was further submitted that the impugned order is mechanical
and non-speaking, and does not disclose any application of judicial
mind. Summoning of an accused being a serious matter, the Magistrate
was required to record satisfaction based on some preliminary
verification, particularly when the accused resides outside territorial
jurisdiction.

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Criminal Miscellaneous Application No.1721 of 2022-----Bhim Singh vs. Bhawan Dutt Bhatt

Ashish Naithani J.
2026:UHC:1453

7. Learned counsel also contended that the complaint is a malicious
prosecution arising out of a prior civil dispute between the parties,
which had culminated in a decree in favour of the Applicant shortly
before filing of the present complaint. It was argued that the alleged
cash transaction of Rs. 20 lakhs is unsupported by any documentary
proof, and that the cheques in question were misused after being
procured through third parties. On these grounds, it was submitted that
continuation of the proceedings would amount to abuse of the process
of court.

8. Per contra, learned counsel for the Respondent opposed the
application and submitted that the complaint clearly discloses all the
essential ingredients of Section 138 of the Negotiable Instruments Act,
namely issuance of cheques, their dishonour, service of statutory notice
and failure to make payment. It was argued that at the stage of
summoning, the Magistrate is only required to see whether a prima
facie case is made out, which condition stands fully satisfied in the
present case.

9. It was further contended that the pleas raised by the Applicant
regarding civil dispute, misuse of cheques and absence of liability are
purely matters of defence, which can only be adjudicated during trial.
The inherent jurisdiction of this Court cannot be invoked to examine
disputed questions of fact or to conduct a mini trial. Statutory
presumptions under Sections 118 and 139 of the Negotiable
Instruments Act operate in favour of the complainant and can be
rebutted only by evidence.

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Criminal Miscellaneous Application No.1721 of 2022-----Bhim Singh vs. Bhawan Dutt Bhatt

Ashish Naithani J.
2026:UHC:1453

10. With regard to Section 202 Cr.P.C., learned counsel submitted
that the Magistrate, after considering the complaint and supporting
material, was satisfied that sufficient ground existed to proceed. It was
argued that mere technical objections should not be permitted to thwart
a legitimate prosecution, and the Applicant ought to raise all his
defences before the trial court. Accordingly, it was prayed that the
application be dismissed.

11. This Court upon due consideration observes that the core issue
that arises for consideration is not the correctness of the allegations on
merits, but whether the impugned summoning order suffers from any
fundamental legal infirmity warranting interference under Section 482
Cr.P.C. It is well settled that the inherent powers of this Court are to be
exercised sparingly; however, where the very initiation of proceedings
is vitiated by non-compliance of a mandatory statutory safeguard, the
High Court would be justified in stepping in to prevent abuse of the
process of court.

12. From the material on record, it is not in dispute that the Applicant
is a resident of District Nainital, whereas the complaint was instituted
before the Additional Chief Judicial Magistrate, Khatima, District
Udham Singh Nagar. In such circumstances, the proviso to Section 202
Cr.P.C. clearly mandates that before issuance of process, the Magistrate
"shall" postpone the same and either conduct an enquiry himself or
direct an investigation for the purpose of deciding whether sufficient
ground exists to proceed. This requirement is not an empty formality;
rather, it is a substantive safeguard intended to protect persons residing
beyond the territorial jurisdiction of the court from being summoned in
a mechanical manner.

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Criminal Miscellaneous Application No.1721 of 2022-----Bhim Singh vs. Bhawan Dutt Bhatt

Ashish Naithani J.
2026:UHC:1453

13. A perusal of the summoning order dated 29.07.2022 shows that
the learned Magistrate has not adverted to Section 202 Cr.P.C. at all,
nor does the order reflect that any enquiry or investigation was
conducted prior to issuance of process. The order merely notices the
allegations and proceeds to summon the Applicant. There is nothing on
record to indicate application of judicial mind to the statutory
requirement or to the necessity of preliminary verification. Such an
omission goes to the root of the matter and renders the summoning
order legally unsustainable.

14. While it is true that the complaint discloses the formal ingredients
of an offence under Section 138 of the Negotiable Instruments Act and
that disputed questions regarding liability, misuse of cheques or civil
disputes ordinarily fall within the domain of trial, the present case
stands on a different footing. The defect pointed out is not factual but
procedural and jurisdictional. When a mandatory condition precedent to
issuance of process has not been fulfilled, the continuation of criminal
proceedings would amount to permitting prosecution founded upon an
invalid exercise of jurisdiction.

15. This Court, therefore, refrains from expressing any opinion on
the merits of the allegations or the defences raised by either side.
However, in view of the clear non-compliance of Section 202 Cr.P.C.,
the impugned summoning order cannot be sustained. The inherent
powers of this Court are thus required to be exercised to secure the ends
of justice and to prevent abuse of the process of court.

ORDER

The application under Section 482 Cr.P.C. is allowed.

Criminal Miscellaneous Application No.1721 of 2022-----Bhim Singh vs. Bhawan Dutt Bhatt

Ashish Naithani J.

2026:UHC:1453

The summoning order dated 29.07.2022 passed by the Additional Chief Judicial Magistrate, Khatima, District Udham Singh Nagar in Complaint Case No.1012 of 2022 (Bhawan Dutt Bhatt vs. Bhim Singh) is hereby quashed.

Consequently, the proceedings of the said complaint case are also quashed. However, it is made clear that this order shall not preclude the Respondent from pursuing his remedy in accordance with law, and it shall be open to the learned Magistrate to proceed afresh in the matter, if so advised, strictly in accordance with law, after due compliance of Section 202 Cr.P.C.

The interim order stands vacated.

Ashish Naithani, J.

27.02.2026 Arti

Criminal Miscellaneous Application No.1721 of 2022-----Bhim Singh vs. Bhawan Dutt Bhatt

Ashish Naithani J.