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TMI Blog2023 (7) TMI 1105X X X X Extracts X X X X X X X X Extracts X X X X ..... the complaint, are that accused no.2 to 5 had approached the complainant and had requested for grant of a loan of Rs. 70,00,000/- for the purpose of developing the land at Hastinapuram, Chennai. Accordingly, a loan agreement dated 20.03.2014 for Rs. 70,00,000/- was entered into between the complainant and accused no. 1 i.e. M/s. Malar Homes represented by accused no. 2. Subsequently, the accused persons had defaulted in payment of principal amount as well as the interest on the above-mentioned loan amount. After regular follow ups and requests by the complainant, the accused persons had issued a cheque bearing no. 452597 of Rs. 1,32,00,000/- (Rupees One Crore and Thirty-Two Lakhs) dated 06.02.2018, drawn on Punjab National Bank, Tiruchirapalli, Tamil Nadu to the complainant towards discharge of principal debt liability including accrued interest. Following that, the complainant had presented the said cheque for collection on 23.02.2018 at his bank i.e. HDFC Bank, Kailash Building, Kastura Gandhi Marg, New Delhi, but the same upon presentation, had returned unpaid on 26.02.2018. Thereafter, on 23.03.2018, the complainant had sent a legal notice to the accused persons to pay the dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Partnership Act, 1932, when a partnership firm is reconstituted,the information has to be given to the Registrar, which has not been shown to be complied with by the petitioners in the present case. It is argued that Section 202 of Cr.P.Cis not applicable to the proceedings initiated under Section 138 of Negotiable Instruments Act.Lastly, it is stated that enforcement of mortgage deed is a civil remedy whereas proceedings under Section 138 of Negotiable Instruments Act for dishonour of cheque is a criminal liability or remedy. It is, therefore, stated that the contentions raised before this Court by the petitioners are all triable issues and the present petition deserves to be dismissed. 5. The arguments addressed by both sides have been heard and the material on record has been perused. 6. Firstly, in the present case,the primary contention raised on behalf of petitioners is that the impugned summoning order suffers from illegality since Section 202 Cr.P.C. mandates the postponement of the 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 learned MM in the present case. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rant case, a warrant or if he thinks fit a summons for the appearance of the accused. These proceedings have been interpreted in several judgments of this Court. For the purpose of the present case, some of them form the subject matter of the submissions by the appellants and the second respondent. *** 41. While noting that the requirement of conducting an enquiry or directing an investigation before issuing process is not an empty formality, the Court relied on the decision in Vijay Dhanuka which had held that the exercise by the Magistrate for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused is nothing but an enquiry envisaged under Section 202 of the Code. 42. In Birla Corporation Ltd. v. Adventz Investments and Holdings, the earlier decisions which have been referred to above were cited in the course of the judgment. The Court noted : "26. The scope of enquiry under this section is extremely restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether process should be issued or not under Section 204 CrPC or whether the complaint should be dismissed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 202 in respect of complaints filed under Section 138 of the Act. Certain cases under Section 138 have been decided by the High Courts upholding the view that it is mandatory for the Magistrate to conduct an inquiry, as provided in Section 202 of the Code, before issuance of process in complaints filed under Section 138. Contrary views have been expressed in some other cases. It has been held that merely because the accused is residing outside the jurisdiction of the court, it is not necessary for the Magistrate to postpone the issuance of process in each and every case. Further, it has also been held that not conducting inquiry under Section 202 of the Code would not vitiate the issuance of process, if requisite satisfaction can be obtained from materials available on record. 11. The learned Amici Curiae referred to a judgment of this Court in K.S. Joseph v. Philips Carbon Black Ltd. where there was a discussion about the requirement of inquiry under Section 202 of the Code in relation to complaints filed under Section 138 but the question of law was left open. In view of the judgments of this Court in Vijay Dhanuka (supra), Abhijit Pawar (supra) and Birla Corporation(supra), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be summoned or not. 8. A perusal of the impugned order reveals that the learned MM 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 learned 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. Having considered the same, this Court does not find any illegality or perversity in the impugned order as far as conformity of the same with Section 202 of Cr.P.C. is concerned, especially in light of the judicial precedents of Hon'ble Apex Court discussed above. 9. Secondly, as regards the issue of jurisdiction, it is not in dispute that the cheque in question was presented by the complainant/ respondent no. 1 at HDFC Bank,Kailash Building, No. 26, Kasturba Gandhi Marg, New Delhi-110001 which is situated within the territorial jurisdiction of Delhi and the cheque had got dishonoured upon presentation with the said bank. Thus, the courts in Delhi would have the jurisdiction to try the present complaint. 10. Thirdly, it was argued before this Court that petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s per law, which may include all the relevant document pertaining to the resignations if any of the petitioners, and as to what role they had in issuance of cheque in question and dishonour of the same. 14. However, as prima facie apparent from the records of the case, the complainant in the complaint under Section 138 of Negotiable Instruments Act has specifically averred that the accused firm represented by its Managing Director i.e. accused no. 2along with the other accused persons, including the 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. It was also averred that the present petitioners were active partners of the accused firm and, thus, were liable for the issuance as well as dishonour of the cheque in question. 15. In view of the reasons recorded in the preceding discussion,at this stage, this Court cannot hold anything contrary to what has been pleaded by the complainant as the same would require scrutiny of the relevant materials and documents as well as examination of witnesses by the concerned Court during the course of trial. The petiti ..... 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