[Cites 7, Cited by 0]
Uttarakhand High Court
Unknown vs State Of Uttarakhand And Another on 10 March, 2026
2024:UHC:6580
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Application U/s 482 No. 861 of 2024
10th March, 2026
Munnu Giri ...........Applicant
Versus
State Of Uttarakhand and Another .......Respondents
With
Criminal Misc. Application U/s 482 No. 920 of 2024
Munnu Giri ...........Applicant
Versus
State Of Uttarakhand and Another .......Respondents
With
Criminal Misc. Application U/s 482 No. 930 of 2024
Munnu Giri ...........Applicant
Versus
State Of Uttarakhand and Another .......Respondents
With
Criminal Misc. Application U/s 482 No. 1099 of 2024
Munnu Giri alias Mannu Giri ...........Applicant
Versus
State Of Uttarakhand and Another .......Respondents
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Presence:-
Mr. Prem Kaushal, along with Ashish Jemini, learned counsel for
the applicant.
Mr. Dinesh Chauhan, learned Brief Holder for the State.
Ms. Pushpa Joshi, learned Senior Counsel assisted by Ms.
Manisha Thakur, learned counsel for respondent
no.2/complainant.
----------------------------------------------------------------------
Hon'ble Mr. Alok Mahra, J.
The present applications under Section 482
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Cr.P.C., being C-482 No. 861 of 2024 and C-482 No.
1099 of 2024, have been filed seeking quashing of the
order dated 21.11.2023 passed by the learned 1st
Additional Civil Judge/Judicial Magistrate, Dehradun in
Complaint Case No. 7292 of 2023 and Complaint Case
No. 7291 of 2023, respectively, under Section 138 of the
Negotiable Instruments Act, 1881. Further, C-482 No.
920 of 2024 and C-482 No. 930 of 2024 have been filed
seeking quashing of the orders dated 25.11.2023 and
29.11.2023, respectively, passed by the learned 1st
Additional Civil Judge/Judicial Magistrate, Dehradun in
Complaint Case No. 7355 of 2023 and Complaint Case
No. 7409 of 2023, under Section 138 of the Negotiable
Instruments Act, 1881, along with the entire criminal
proceedings of the aforesaid cases.
2. Since a common question of law and fact is
involved in all the four applications, relating to
dishonour of cheques arising out of the same
transaction between the same parties, the matters are
being decided together by this common judgment.
However, for the sake of brevity, the facts of C-482 No.
861 of 2024 are being taken into consideration.
3. Briefly stated, the facts of the case are that the
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applicant no.1 and respondent no.2 were both serving in
the Border Security Force (BSF) and are stated to be
close friends. It is alleged that the applicant had taken a
friendly loan of ₹24,50,000/- from respondent no.2 with
the assurance that the same would be returned along
with profit amounting to ₹36,00,000/-. In order to
secure the said amount, the applicant allegedly issued
four cheques of ₹9,00,000/- each, totalling ₹36,00,000/,
in favour of respondent no.2.
4. It is further alleged that when the applicant
failed to repay the said amount, respondent no.2
presented the cheques before the concerned bank for
encashment; however, the same were dishonoured with
the remark "Exceeds Arrangement." Thereafter,
respondent no.2 issued legal notices under Section 138
of the Negotiable Instruments Act and subsequently
instituted complaint cases before the court concerned.
The learned Magistrate, after considering the complaint
and the affidavit filed under Section 200 Cr.P.C., took
cognizance vide order dated 21.11.2023 and issued
summons to the applicants.
5. Learned counsel for the applicants would
submit that the amount was received by the applicant
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from respondent no.2 for the purpose of investment in a
land purchase transaction and that the cheques in
question were issued merely as security cheques. It is
further submitted that the applicant has already repaid
the entire amount along with profit to respondent no.2
and the dispute had already been settled between the
parties. However, despite such settlement, respondent
no.2 has misused the cheques and filed the present false
complaints.
6. It is further contended that the learned
Magistrate has taken cognizance on the basis of the
affidavit filed under Section 200 Cr.P.C., but while
issuing the summoning order the court below has failed
to comply with the mandatory provisions of Section 202
Cr.P.C. It is submitted that since the applicants are
residents of Haridwar, which is beyond the territorial
jurisdiction of the court at Dehradun, the learned
Magistrate ought to have conducted an inquiry or
directed investigation under Section 202 Cr.P.C. prior to
issuance of process.
7. Per contra, learned senior counsel appearing
for respondent no.2/complainant has vehemently
opposed the submissions advanced on behalf of the
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applicants and submitted that respondent no.2 duly
issued statutory notices with respect to all the four
cheques, which were properly served upon the
applicants. It is submitted that the plea of non-service of
legal notice is incorrect. It is further submitted that
Section 142(2)(b) of the Negotiable Instruments Act
provides that the jurisdiction in respect of offences
under Section 138 N.I. Act lies with the court within
whose jurisdiction the branch of the bank where the
payee or holder in due course maintains the account is
situated, and therefore the court at Dehradun has
proper jurisdiction to entertain the complaint.
8. In rejoinder, learned counsel for the applicants
submits that the Hon'ble Supreme Court in Suo Motu
Writ Petition (Criminal) No. 2 of 2020 has reiterated that
where the accused resides outside the territorial
jurisdiction of the Magistrate concerned, holding of an
inquiry under Section 202 Cr.P.C. prior to issuance of
summons is mandatory, and the same cannot be
dispensed with.
9. Heard learned counsel for the parties and
perused the material available on record.
10. It is not in dispute between the parties that
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before issuance of summons to the applicants, who are
residing outside the territorial jurisdiction of the court
concerned, the procedure contemplated under Section
202 Cr.P.C. has not been followed by the learned
Magistrate. For better appreciation, Section 202 Cr.P.C.
is reproduced hereinbelow:
"202. Postponement of issue of process (1) Any
Magistrate, on receipt of a complaint of an offence of
which he is authorised to take cognizance or which
has been made over to him under section 192, may, if
he thinks fit and shall in a case where the accused is
residing at a place beyond the area in which he
exercises his jurisdiction, postpone the issue of
process against the accused, and either inquire into
the case himself or direct an investigation to be made
by a police officer or by such other person as he
thinks fit, for the purpose of deciding whether or not
there is sufficient ground for proceeding:
Provided that no such direction for
investigation shall be made--
(a) where it appears to the Magistrate that the
offence complained of is triable exclusively by
the Court of Sessions; or
(b) where the complaint has not been made by a
Court, unless the complainant and the
witnesses present (if any) have been examined
on oath under section 200."
11. A plain reading of Section 202 Cr.P.C. makes it
evident that where the accused resides at a place
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beyond the territorial jurisdiction of the Magistrate, the
Magistrate shall postpone issuance of process and
conduct an inquiry himself or direct an investigation for
the purpose of deciding whether sufficient grounds exist
for proceeding against the accused.
12. In the present case, the record reveals that the
learned Magistrate has proceeded to issue summons
against the applicants without conducting the
mandatory inquiry under Section 202 Cr.P.C., despite
the admitted fact that the applicants are residing
outside the territorial jurisdiction of the court
concerned.
13. In view of the above, this Court is of the
considered opinion that the summoning orders passed
by the learned Magistrate suffer from procedural
illegality, as the mandatory requirement of Section 202
Cr.P.C. has not been complied with.
14. Consequently, the impugned summoning
orders passed in the aforesaid complaint cases are
hereby set aside, and the matters are remanded back to
the Trial Court to proceed afresh from the stage of
inquiry as contemplated under Section 202 Cr.P.C.
15. Considering the fact that the complaint cases
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were instituted in the year 2023, and in view of the
mandate of Section 143 of the Negotiable Instruments
Act, which requires that complaints under Section 138
N.I. Act be decided expeditiously, the Trial Court is
directed to conduct the inquiry under Section 202
Cr.P.C. at the earliest and preferably within a period of
six weeks from the date of communication of this order,
and thereafter proceed with the complaint cases in
accordance with law without granting unnecessary
adjournments to either of the parties.
16. In view of the aforesaid observations, all the
applications under Section 482 Cr.P.C. stand disposed
of accordingly.
17. Pending applications, if any, also stand
disposed of.
(ALOK MAHRA,J.)
10.03.2026
Mamta
MAM
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postalCode=263001,
st=Uttarakhand,
serialNumber=5de1751a4f1
RANI
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66dd26690a191648ab5d8dd
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Date: 2026.03.13 16:32:36
+05'30'
