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2023 (11) TMI 460 - HC - Indian LawsDishonour of Cheque - postponement of issue of process - mandatory inquiry in terms of Section 202 of the CrPC can be conducted on the basis of pre summoning evidence or not - HELD THAT - It is clear that in cases under Section 138 of the NI Act, the mandatory inquiry as contemplated by Section 202 of the CrPC can be conducted by taking evidence of the complainant on affidavit. The inquiry need not be necessarily conducted by taking evidence on oath. Further, documents may be examined by the Trial Court for satisfaction as to the sufficiency of grounds for proceeding under Section 202 of the CrPC. Whether the learned MM in the present cases has conducted an inquiry under Section 202 of the CrPC before issuance of summons to the Accused? - HELD THAT - In light of the presumption under Section 139 of the NI Act, a cheque given under Section 138 of the NI Act is presumed to be in discharge of a legally enforceable debt or other liability. The aforesaid presumption is rebuttable and the accused can rebut this presumption by leading evidence in this regard. Therefore, the contention of the Accused that a legally enforceable debt has not accrued in favour of the Complainant on account of non-fulfilment of the conditions in the Agreement would have to be proved by leading evidence at the time of trial. The learned MM is not required to go into this evidence while conducting an inquiry under Section 202 of the CrPC - At the stage of issuance of summons, for the purpose of Section 202 of the CrPC read with section 145 of the NI Act, the learned MM is only required to examine whether the basic ingredients of an offence under Section 138 of the NI Act have been prima facie made out by the complainant and supported by the pre-summoning evidence led on behalf of the complainant. Upon dishonour, statutory notice under Section 138 of the NI Act had been duly issued by the Complainant to the Accused and the Accused failed to make the payment within fifteen days of the receipt of the notice - both the summoning orders issued by the learned MM in the present cases satisfy the requirements of Section 202 of the CrPC read with Section 145 of the NI Act. In both the complaint cases, the learned MM has duly conducted the necessary inquiry under Section 202 of the CrPC before issuance of summons to the Accused. If the contention of the Accused is accepted that the MM has to conduct an inquiry by appreciating the terms and conditions of the Agreement entered into between the parties to ascertain if a legally enforceable debt has arisen, it would result in a full trial being conducted even before the issuance of summons. Clearly, such an exercise would be in teeth of the directions passed by the Supreme Court in Re Expeditious Trial of Cases Under Section 138 of NI Act 1881 ( 2021 (4) TMI 702 - SUPREME COURT ). Application allowed.
Issues Involved:
1. Whether the mandatory inquiry under Section 202 of the CrPC was conducted by the learned MM before issuing summons. 2. Whether the existence of a legally enforceable debt was required to be ascertained by the learned MM at the stage of issuing summons. Summary: Issue 1: Inquiry under Section 202 of CrPC The primary issue in both petitions was whether the learned Metropolitan Magistrate (MM) conducted the mandatory inquiry under Section 202 of the Code of Criminal Procedure, 1973 (CrPC) before issuing summons to the accused. The complainant argued that the inquiry was conducted based on pre-summoning evidence and documents on record, and it was not necessary for the MM to formally mention Section 202 CrPC in the summoning order. The court referred to the Supreme Court guidelines in Re: Expeditious Trial of Cases under Section 138 of the NI Act 1881, which stated that the inquiry under Section 202 CrPC could be conducted by taking evidence on affidavit and examining documents. The court concluded that the summoning orders issued by the learned MM in both cases satisfied the requirements of Section 202 CrPC read with Section 145 of the NI Act. Issue 2: Legally Enforceable Debt The second issue was whether the learned MM was required to ascertain the existence of a legally enforceable debt at the stage of issuing summons. The court held that under Section 139 of the NI Act, there is a presumption that a cheque is issued in discharge of a legally enforceable debt or liability. This presumption is rebuttable, and the accused can rebut it by leading evidence during the trial. The court emphasized that the learned MM is not required to determine the existence of a legally enforceable debt while conducting an inquiry under Section 202 CrPC. The court referred to the Supreme Court judgment in Shiv Kumar v. Ramavtar Agarwal, which supported this view. Conclusion The court allowed CRL. M.C. 2480/2023, setting aside the order dated 15th February 2023 passed by the learned ASJ and upholding the order dated 9th January 2020 passed by the learned MM. CRL. M.C. 4141/2023 was dismissed, and the order dated 27th January 2020 passed by the learned MM was upheld. The petitions, along with the pending applications, were disposed of.
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