Criminal Misc. No.M-8527 of 2009 O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Criminal Misc. No.M-8527 of 2009 O&M) Date of decision: 15.2.2010 M/s S.M.Sales Corporation and others ......Petitioners Versus M/s Krishna Yarn House .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Pritam Saini, Advocate, for the petitioners. Ms.Preeti Khanna, Advocate, for the respondent. **** SABINA, J. This petition has been filed under Section 482 of the Code of Criminal Procedure ('Cr.P.C.' for short) for quashing of the criminal complaint dated 22.9.2008 (Annexure P-2) and the summoning order dated 4.10.2008 (Annexure P-3) passed by the Chief Judicial Magistrate, Ist Class, Amritsar issued under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act') and the subsequent proceedings arising therefrom. Criminal Misc. No.M-8527 of 2009 O&M) 2 Learned counsel for the petitioners has submitted that the petitioners have been falsely involved in this case. In fact, in the complaint, the cheque amount was not mentioned. The cheque number in question had been issued for Rs.20,400/-, whereas, the summoning order had been issued with regard to cheque amount of Rs.1,45,000/-. Learned counsel for the respondent has fairly submitted that there was mistake in the summoning order with regard to the cheque amount. The respondent has filed the complaint in question under Section 138 of the Act with regard to dishonour of cheque No.207478 dated 1.8.2008 drawn by petitioner Ankur Kumar Jain on behalf of M/s S.M. Sales Corporation in due course of discharge of business. Petitioners Vinay Kumar Jain and Ankur Kumar Jain are partners of the said firm. Admittedly, the cheque in question had been issued for an amount of Rs.20,400/-, whereas, in the summoning order the amount of cheque is mentioned as Rs.1,45,000/-. No ground for quashing of complaint at this stage is made out. Petitioners No.2 and 3 are the partners of the firm-petitioner No.1 and the cheque in question has been issued by petitioner No.2 on behalf of the firm in discharge of business of the firm. The cheque in question was dishonoured due to insufficient funds and despite a legal notice served by the complainant, the cheque amount had not been paid. The summoning order is, Criminal Misc. No.M-8527 of 2009 O&M) 3 however, liable to be quashed on two grounds. Firstly, the amount of cheque has not been correctly mentioned in the impugned summoning order dated 4.10.2008. Secondly, no enquiry has been conducted by the Magistrate in terms of Section 202 Cr.P.C. Amended Section 202 Cr.P.C. reads as under:- “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 Session;or (b) where the complaint has not been made by a Court, unless the complainant an the witnesses present (if any) have been examined on oath under Section 200. Criminal Misc. No.M-8527 of 2009 O&M) 4 (2)In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath; Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant”. Thus, as per the above provision, it is mandatory for the Magistrate before issuing summons to an accused person, who was residing at a place beyond the area in which the said Magistrate exercised jurisdiction to hold a further inquiry for the purpose of deciding as to whether there were sufficient grounds for proceeding with the complaint or not. The summoning order has been passed by the Chief Judicial Magistrate, Amritsar whereas accused are residing in New Delhi. A perusal of the summoning order reveals that the process has been issued without holding any inquiry or getting the complaint investigated in any manner. Process has been issued only on the basis of the statement of the complainant. In these circumstances, the impugned summoning order is liable to be set Criminal Misc. No.M-8527 of 2009 O&M) 5 aside as it cannot be sustained being in violation of the mandatory requirement of Section 202 Cr.P.C. Accordingly, this petition is partly allowed. The impugned order of summoning the petitioners dated 4.10.2008 (Annexure P-3) is set aside. The case is remanded back to the Chief Judicial Magistrate to pass a fresh summoning order in accordance with law. (SABINA) JUDGE February 15, 2010 anita