Crl.Misc.No.M-23507 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Misc. No. M-23507 of 2009 Date of Decision:March 10 , 2010 Smt. Neeta Sinha ...........Petitioner Versus P.S.Raj Steels Private Ltd. ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: Mr. Kunal Dawar,Advocate for the petitioners. Ms.Sunita,Advocate for Mr.Param Pal,Advocate for the respondent ** Sabina, J. Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure (for short `Cr.P.C.) seeking quashing of criminal complaint dated 24.2.2009 (Annexure P10) filed under Section 138 of the Negotiable Instruments Act, 1881 (for short `the Act') titled `M/s P.S.Raj Steels Pvt. Ltd. vs. M/s Elektroweld Automation India Pvt. Ltd.' along with all subsequent proceedings arising therefrom and the summoning order dated 15.5.2009 (Annexure P11) passed by the Chief Judicial Magistrate, Hisar under the Act. The brief facts of the case, as noticed by the Additional Chief Judicial Magistrate in para 1 of its judgment, read as under:- " The brief facts of the present complaint are that accused No.3 Crl.Misc.No.M-23507 of 2009 2 Vipin Sinha issued a cheque bearing No.119173 dated 3.12.2008 for Rs.75,000/- drawn on Corporation Bank, Paschim Vihar Branch, New Delhi, from the account of accused No.1 Smt. Neeta Sinha, Director of the Electroweld Automation India (Private) Limited, in favour of the complainant with the assurance that the sufficient balance in the account and the cheque in question would be honoured on its presentation. The complainant presented the said cheque for collection but the same was dishonoured by the bank vide memo dated 30.12.2008 with the remarks "Payment Stopped by Drawer" Despite the issuance of legal notice, accused did not make the payment. Hence, this complaint" Learned counsel for the petitioner has submitted that the petitioner is resident of New Delhi and the impugned order has been passed by the Additional Chief Judicial Magistrate, Hisar without complying with the mandatory provisions of Section 202 Cr.P.C. Learned counsel has placed reliance on S.K.Bhowmik vs. S.K.Arora and another 2007(4) RCR(Criminal) 650. Learned counsel for the respondent, on the other hand, has opposed the petition. After hearing the learned counsel for the parties, I am of the opinion that the instant petition deserves to be allowed. 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 Crl.Misc.No.M-23507 of 2009 3 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. (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 provisions, the Magistrate shall in case where the accused is residing at a place beyond the area in which he exercises his Crl.Misc.No.M-23507 of 2009 4 jurisdiction postpone the issue of process against the accused and also 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. In the present case, a perusal of the impugned order reveals that the Magistrate has relied upon the statement of the complainant and the documents tendered in evidence while issuing the summoning order. Magistrate has not conducted any inquiry as envisaged under Section 202(1) Cr.P.C before passing the impugned order as the petitioner is resident of New Delhi. The other accused Vipan Sinha is also resident of New Delhi. Accordingly, this petition is partly allowed. The impugned order for summoning the petitioner dated 15.5.2009 (Annexure P11) is set aside and the Magistrate is directed to pass the fresh order in accordance with law after complying with the mandatory provisions of Section 202 Cr.P.C. (Sabina) Judge March 10, 2010 arya