1 CRM(M) No. 682/2023 S. No. 36 Regular Cause List IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CRM(M) No. 682/2023 Nawaz Ahmad Thoker …Appellant/Petitioner(s) Through: Mr. Tariq M. Shah, Advocate Vs. Mohammad Aslam Malik ...Respondent(s) Through: Mr. Wajid Mohammad Haseeb, Advocate CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE O R D E R 18.04.2025 1. Quashment of cognizance/summoning order dated 23rd April 2021 passed by Judicial Magistrate 1st Class DH Pora (for short “trial court”) in a complaint titled as “Mohammad Aslam Malik vs Nawaz Ahmad Thoker”, is prayed for on the grounds made mention of in instant petition. 2. At threshold, Mr. Wajid Haseeb, learned counsel for the respondent, has submitted with vehemence that provisions of Section 202 Cr.P.C. are not be applicable to the case in hand inasmuch as it is a complaint under Section 138 of Negotiable Instruments Act, filed by respondent before the Trial Court and, therefore, no illegality can be ascribed or found in the order impugned whereby cognizance has been taken. 3. The short grievance projected by the petitioner is that the Trial Court has taken cognizance on the complaint of respondent without invoking the provisions of Section 202 Cr.P.C. as the respondent/accused is residing at a place outside its jurisdiction. 2 CRM(M) No. 682/2023 4. In the present case, complaint has been filed before the court at D.H. Pora, District Kulgam, whereas accused/petitioner is resident of Nagisharan District Shopian. It appears that it is in the context of law laid down by the Supreme Court in Suo Motu Writ Petition (Crl.) No. 2 of 2020, In Re: Expeditious Trial of Cases under Section 138 of N.I. Act 1881, reported in AIR 2021 SC 1957, that petitioner has bring instant petition before this Court to exhort that inquiry being imperative prior to taking cognizance on a complaint filed under Section 138 N.I. Act. A copy of the aforesaid judgment has been passed on by learned counsel for petitioner to bolster case projected in the petition. 5. Given the case set up and submissions made, as aforesaid, it would be apt to reproduce directions/conclusions issued/drawn by the Supreme Court in the aforesaid case hereunder:- “1) The High Courts are requested to issue practice directions to the Magistrates to record reasons before converting trial of complaints under Section 138 of the Act from summary trial to summons trial. 2) Inquiry shall be conducted on receipt of complaints under Section 138 of the Act to arrive at sufficient grounds to proceed against the accused, when such accused resides beyond the territorial jurisdiction of the court. 3) For the conduct of inquiry under Section 202 of the Code, evidence of witnesses on behalf of the complainant shall be permitted to be taken on affidavit. In suitable cases, the Magistrate can restrict the inquiry to examination of documents without insisting for examination of witnesses. 4) We recommend that suitable amendments be made to the Act for provision of one trial against a person for multiple offences under Section 138 of the Act committed within a period of 12 months, notwithstanding the restriction in Section 219 of the Code. 5) The High Courts are requested to issue practice directions to the Trial Courts to treat service of summons in one complaint under Section 138 forming part of a transaction, as deemed service in respect of all the complaints filed before the same court relating to dishonour of cheques issued as part of the said transaction. 6) Judgments of this Court in Adalat Prasad (supra) and Subramanium Sethuraman (supra) have interpreted the law correctly and we reiterate that there is no inherent power of Trial Courts to review or recall the issue of summons. This does not affect the power of the Trial Court under Section 322 of the Code to revisit the order of issue of process in case it is brought to the court's notice that it lacks jurisdiction to try the complaint. 3 CRM(M) No. 682/2023 7) Section 258 of the Code is not applicable to complaints under Section 138 of the Act and findings to the contrary in Meters and Instruments (supra) do not lay down correct law. To conclusively deal with this aspect, amendment to the Act empowering the Trial Courts to reconsider/recall summons in respect of complaints under Section 138 shall be considered by the Committee constituted by an order of this Court dated 10.03.2021. 8) All other points, which have been raised by the Amici Curiae in their preliminary report and written submissions and not considered herein, shall be the subject matter of deliberation by the aforementioned Committee. Any other issue relating to expeditious disposal of complaints under Section 138 of the Act shall also be considered by the Committee.” 6. In the backdrop of above settled legal position, when a complaint under Section 138 N.I. Act, is received by a Magistrate, an inquiry is to be conducted by him to arrive at sufficient grounds to proceed against the accused when such accused resides beyond the territorial jurisdiction of the Magistrate and for conduct of inquiry under Section 202 Cr.P.C., evidence of complainant’s witnesses is to be permitted to be taken on affidavit. In suitable cases, the Magistrate can restrict the inquiry to examination of documents without insisting for examination of witnesses. 7. When the case in hand is analysed in the background of aforesaid directions of the Supreme Court, it was necessary for the Trial court to conduct inquiry. If that being the position, order impugned is set- aside. The matter is remanded back to the Trial court, who shall conduct inquiry in the complaint as stipulated by the Supreme Court in the aforesaid judgment. 8. Disposed of. (VINOD CHATTERJI KOUL) JUDGE SRINAGAR 18.04.2025 “Shabroz”