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TMI Blog2021 (8) TMI 1350X X X X Extracts X X X X X X X X Extracts X X X X ..... ereinafter referred to as "Act of 1881"). 2. Non-applicant No. 2 filed complaint dated 23/11/2016, before the Court of Magistrate, claiming that the applicants before this Court are liable to be punished for the offence punishable under section 138 of the Act of 1881. The said complaint has been registered as Summary Criminal Complaint No. 17257 of 2016. By the impugned order, the Magistrate has issued process against the applicants. 3. In the present application, this Court issued notices on 15/06/2017 and granted interim stay to the proceedings before the Magistrate. An attempt at mediation resulted in failure. On 25/01/2018, this Court granted Rule in the present application and the interim stay was continued. The record shows that non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f N.I. Act 1881. The learned counsel submitted that the conclusions rendered in the said judgment specify that an enquiry under section 202 of the Cr.P.C., in the context of complaint under section 138 of the Act of 1881, is mandatory, although the procedure has been modified to the extent that the evidence of the witnesses could be taken up on affidavits. On this basis, it was submitted that the impugned order deserves to be set aside, as process has been issued merely by recording that the complaint, verification statements and the documents filed along with the complaint were perused. 5. Mr. A.R. Chutake, learned APP has appeared on behalf of the non-applicant-State. 6. As noted above, although represented by counsel, non-applicant No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistrate can restrict the inquiry to examination of documents without insisting for examination of witnesses." 8. In the said suo motu proceeding before the Hon'ble Supreme Court, the question as to whether the enquiry under section 202 of the Cr.P.C. was mandatory in the context of complaints under section 138 of the Act of 1881 was specifically raised and answered. As noted above, the Hon'ble Supreme Court has specifically held that such an enquiry has to be conducted, even in cases concerning complaints under section 138 of the Act of 1881. The impugned order does show that no such enquiry was conducted and therefore it is rendered unsustainable. As regards the other contention raised on behalf of the applicants, this Court is o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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