Negotiable Instruments Act, 1881
Section 138 read with Section 141—Dishonour of cheque—Petition for setting aside of summoning order—Primary contention of petitioners is that impugned summoning order suffers from illegality since Section 202 CrPC mandates the postponement of issuance of process where an accused resides beyond the jurisdiction of the territory of the court and despite the same, no inquiry was carried out by the MM in the present case—Magistrate while considering the complaint in relation to offence under Section 138 of NI Act under Section 202 of CrPC, in case where an accused resides outside the jurisdiction of the Court, is not required to examine the witness on oath for conducting the enquiry as contemplated under Section 202 of CrPC, rather can itself advert to the documents and evidence by way of affidavit filed on record by the complainant and reach a satisfaction as to whether the accused should be summoned or not—Magistrate has considered the contents of the complaint, the documents annexed thereto, the affidavit filed by the complainant as well as the submissions made by the counsel for the complainant and only thereafter, having been satisfied that prima facie case existed against the accused persons, had issued summons to the accused persons—No illegality or perversity found in the impugned order—Petition dismissed.
[Paras 6 to 8]
Section 138 read with Section 141—Dishonour of cheque—Petition for setting aside of summoning order—Issue of jurisdiction—Cheque in question was presented by the complainant/ first respondent at Bank at New Delhi which is situated within the territorial jurisdiction of Delhi and the cheque had got dishonoured upon presentation with the said bank—Courts in Delhi would have the jurisdiction to try the present complaint—Petition dismissed.
[Para 10]
Section 138 read with Section 141—Dishonour of cheque—Petition for setting aside of summoning order—Submission that second and third petitioner had resigned from accused firm before the issuance of cheque in question and its subsequent dishonor—Cheque had been issued at the time of obtaining loan i.e. in the year 2014 to cover the shortfall, if any, after the loan amount would be recovered by way of enforcement of mortgage deed—It is the case of petitioners themselves that the cheque in question was undated/post-dated cheque given to first respondent by petitioners at the time of obtaining loan—Issues before courts are all triable issues—Complainant has specifically averred that accused firm represented by its Managing Director i.e. second accused along with other accused persons, including petitioners, had approached the complainant for grant of loan and all the partners in connivance with each other had issued the cheque in question for repayment of the said loan—Petitioners were stated to be active partners of the accused firm—Petitioners have failed to bring on record any unimpeachable material or material of sterling quality to show that they had resigned from accused firm or were not responsible for day-to-day affairs of the firm when the cheque was issued or dishonored or that the dishonoring of cheque in question was not attributable to any negligence or connivance or consent on their part—No reasons found to interfere with impugned summoning order—Petition dismissed.
[Paras 10 to 16]