- (1.) THE petitioner has sought quashing of the complaint dated 5.11.2008 (Annexure P -10) filed by the respondent for offence punishable under Sections 406/408/411/467/468/471/379 IPC; summoning order dated 4.8.2011 (Annexure P - 11) passed by the Judicial Magistrate First Class, Ludhiana and the order dated 20.2.2013 (Annexure P -12) passed by the Additional Sessions Judge, Ludhiana. The petitioner filed a complaint under Section 138 Negotiable Instruments Act against the respondent with the averments that a cheque bearing No.295993 dated 15.9.2008 for Rs. 5,90,000/ - drawn on Bank of India Civil Lines, Ludhiana Branch was issued by the respondent towards the price of the material purchased from the petitioner. The cheque when presented to the bank was dishonoured with the remarks "exceeds arrangements". After complying with the required legal formalities, the complaint was filed which is pending in the court of Chief Judicial Magistrate, Gautam Budh Nagar, Noida. To wriggle out of his legal liability, the respondent filed a false complaint to the police with the allegations that its previous director Harvinder Singh had stolen the cheque in question and same had been presented before the Bank in conspiracy with Harvinder Singh. The police after investigating the complaint opined that it was a dispute of civil nature and no police action was required. In another enquiry dated 6.4.2009, the allegations levelled by the respondent were found to be false by Deputy Superintendent of Police, Ludhiana.
(2.) THE respondent filed a petition under Section 156 (3) Cr.P.C. for registration of the FIR against the petitioner and Harvinder Singh, in which, vide order dated 4.8.2011 (Annexure P -11), the petitioner was summoned to face trial. The petitioner filed revision petition against the said order which was also dismissed. I have heard learned counsel for the parties and have perused the file with their assistance. Admittedly, a complaint under Section 138 Negotiable Instruments Act, had already been filed by the petitioner against the respondent on 16.1.2009 relating to the dishonour of the cheque No.295993 dated 15.9.2009. Perusal of the complaint filed by the petitioner shows that he had alleged the theft of some cheques of his firm by Harvinder Singh son of Jagjit Singh, the alleged employee of the respondent and giving of the cheque No.295993 dated 15.9.2008 to the petitioner. As per the complainant (respondent herein), he immediately got the payment of the said cheque stopped.
(3.) LEARNED counsel for the petitioner has argued that the trial court passed the summoning order in a mechanical manner without looking into the provisions of Section 202 Cr.P.C. Admittedly, the petitioner is a resident of Greater Kailash, Part -I, New Delhi. The complaint was filed at Ludhiania. The complainant had not appeared as witness during preliminary evidence. He has examined one Veer Bhan and Paramjit Singh representatives of the complainant company, who have reiterated the story as put forth in the complaint. The petitioner is a resident of Delhi and in the peculiar facts and circumstances of the case, as put forth by the respondent, the trial court was required the postpone the process against the accused and enquire into the matter to reach the conclusion as to whether or not there are sufficient grounds for proceeding. The provisions of Section 202 Cr.P.C. provides as follows : - "202. 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 or investigation shall be made - (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) XXX XXX XXX. (3) XXX XXX XXX.";