ASHEESH KUMAR SHARMA Vs. RAJESH GUPTA

JUDGEMENT

(1.) BY way of this order, I shall dispose of CRM M 14752 of 2009 and CRM M 2365 of 2010 as they emerge out of common proceedings of criminal complaint captioned 'Rajesh Gupta v. M/s. Commander Poultries etc.' under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter to be referred as, 'the 1881 Act'). However, for facility of reference, facts are being taken from CRM M 14752 of 2009. Counsel for the petitioner submits that the criminal complaint is pending in the Court of Judicial Magistrate 1st Class, Chandigarh and the summoning order dated 18.07.2006 (Annexure P2) has been passed, whereby the petitioner and his co -accused, namely M/s. Commander Poultries, a partnership firm, Manish Sharma and Smt. Kamla Sharma, have been summoned to face trial for commission of offence under section 138 of the 1881 Act, on the allegations that a cheque amounting to Rs. 40,00,000/ -, issued under the signatures of Manish Sharma and Smt. Kamla Sharma, on behalf of the partnership firm in discharge of a legally enforceable liability qua an agreement to sell of poultry farm, got dishonoured on its presentation to the Bank.

(2.) COUNSEL submits that the criminal complaint was filed on 18.07.2006 and on that very day, statement of the complainant was recorded and summoning order was passed, which shows that the Judicial Magistrate has not complied with the provisions of Section 202 of the Code of Criminal Procedure (hereinafter referred to as, 'the Code'), which requires an inquiry to be conducted as the petitioners are residents of a place outside the local jurisdiction of the Court at Chandigarh. In support of his contention, he has placed reliance upon judgments of this Court in 'S.K. Bhowmik v. S.K. Arora and another, : 2007(4) R.C.R. (Criminal) 650 and Smt. Neeta Sinha v. P.S. Raj Steels Private Limited, : 2010 (1) R.C.R. (Criminal) 509.

(3.) COUNSEL for the respondent, on the other hand, refuted the contentions of counsel for the petitioner by submitting that examination of the complainant as a witness in preliminary evidence is a sufficient compliance with the provisions of Section 202 of the Code. The judgment in S.K. Bhowmik's case (supra) was discussed at length in 'Pardeep v. State of Haryana and another' (Criminal Misc. M 15252 of 2010, decided on 18.05.2010) and this Court held that examination of the complainant and the witnesses and documents produced in evidence is a sufficient compliance with the requirements of Section 202 of the Code in regard to conducting of inquiry by the Magistrate before issuing process for summoning the accused. He has placed reliance upon judgments of this Court in 'Goenka Tradelinks Pvt. Limited v. Indiabulls Financial Services Limited' (CRM M 34763 of 2012, decided on 22.05.2013), Apex Health Care Private Limited and others v. M/s. Alchemist Hospitals Limited,, 2012(5) R.C.R. (Criminal) 694 and 'M/s. Bharat Trading Company and others v. State of Haryana and another', : 2012(2) R.C.R. (Criminal) 154, wherein, the question of conducting an inquiry in proceedings under Section 138 of the 1881 Act, has been dealt in detail and held that the provisions of Section 202 of the Code have no applicability to a complaint under Section 138 of the 1881 Act, as the offence is non -cognizable.