- 1 - HC-KAR NC: 2025:KHC:29582 CRL.P No. 5968 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM CRIMINAL PETITION NO.5968 OF 2025 BETWEEN: 1. M/S A.N.G ASSOCIATES (THROUGH ITS PARTNER MR.TUSHAR CHHOTALAL JOSHI) HAVING OFFICE AT NO.B - 101 OM SAI NIWAS SUBHASH ROAD NEAR SARASWAT BANK VILE PARLE (E) MUMBAI-400 057 2. TUSHAR CHHOTALAL JOSHI AN INDIAN INHABITANT HAVING ADDRESS AT COMPLAINANT 5 2ND FLOOR, LARAM CENTRE ABOVE BATA SHOWROOM M.A.ROAD, OPP:HARBOUR LINE PLATFORM ANDHERI - WEST MUMBAI - 400 058. AND ALSO HAVING ADDRESS AT MATHUR VILLA GROUND FLOOR BHAGAT SINGH ROAD Digitally signed by NAGARAJA B M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:29582 CRL.P No. 5968 of 2025 VILE PARLE (W) MUMBAI - 400 056 …PETITIONERS (BY SRI.LOKESH A, ADVOCATE FOR SRI.ADITYA RAI, ADVOCATE) AND: HEMANT LALJI SHAH AN ADULT, HAVING ADDRESS AT NO.29/1, 1ST CROSS, 5TH MAIN ROAD 2ND STAGE, KHB COLONY BASAVESHWARANAGAR BENGALURU - 560 079 …RESPONDENT (BY SRI.VENKATA REDDY G K, ADVOCATE) THIS CRL.P IS FILED U/SEC.482 CR.PC (FILED U/SEC.528 BNNS) BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HONOURABLE COURT MAY BE PLEASED TO SET ASIDE THE IMPUGNED ORDER DATED 22/02/2025 PASSED BY THE LEARNED 68TH ADDL CITY CIVIL AND SESSIONS JUDGE IN CRIMINAL REVISION PETITION NO.248 OF 2023 AND ETC. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM ORAL ORDER This petition is filed by the petitioners - accused challenging the cognizance taken by the learned - 3 - HC-KAR NC: 2025:KHC:29582 CRL.P No. 5968 of 2025 Magistrate under Section 202 of the Criminal Procedure Code on the ground that without adhering to the mandate provided under Section 202 of the Code of Criminal Procedure, 1973. 2. The primary contention urged by the learned counsel for the petitioners–accused is that all the petitioners are admittedly residents of Mumbai, which is evident from the address details furnished in the complaint itself. Respondent No.2–complainant, while filing the private complaint in P.C.R. No.16766/2022, has categorically indicated that the petitioners are permanent residents of Mumbai. Drawing attention to the cause title and the averments in the complaint, learned counsel contends that the learned Magistrate, before taking cognizance and issuing process, was duty-bound to comply with the mandate of Section 202 of the Code of Criminal Procedure, 1973, as the accused were residing beyond the jurisdictional limits of the Court. - 4 - HC-KAR NC: 2025:KHC:29582 CRL.P No. 5968 of 2025 3. In support of this contention, learned counsel has placed reliance on the authoritative judgment of the Hon’ble Supreme Court in Suo Motu Writ Petition (Criminal) No.2 of 20201, wherein a Full Bench of the Apex Court has reiterated the mandatory nature of compliance with Section 202 Cr.P.C., particularly in complaints under Section 138 of the Negotiable Instruments Act, 1881. Referring to paragraph 10 of the said judgment, he submits that where the accused resides outside the territorial jurisdiction of the Magistrate, it is incumbent upon the Magistrate to postpone the issuance of process and either conduct an inquiry himself or direct an investigation to be made by a police officer or any other person deemed fit. The object of this mandatory safeguard is to prevent harassment of persons who reside outside the jurisdiction of the Court. 4. The failure to comply with the mandate of Section 202 Cr.P.C. prior to issuance of process is not seriously 1 AIR 2021 SC 1957 - 5 - HC-KAR NC: 2025:KHC:29582 CRL.P No. 5968 of 2025 disputed by the learned counsel for the respondent. In fact, similar issues have been considered by the Hon’ble Apex Court as well as by Co-ordinate Benches of this Court in analogous matters, and the ratio laid down therein squarely applies to the present case. The procedural safeguard under Section 202 Cr.P.C. assumes even greater significance where the complaint is instituted by way of a private complaint, and the accused is located outside the jurisdiction of the Court. 5. For the foregoing reasons, this Court is of the considered view that the petitioners–accused being residents of Mumbai, the learned Magistrate was under a statutory obligation to comply with Section 202 of Cr.P.C. prior to issuance of process. The failure to conduct an inquiry or direct an investigation before taking cognizance constitutes a serious procedural irregularity that vitiates the proceedings. In light of the legal position enunciated by the Hon’ble Supreme Court, the order of the learned Magistrate taking cognizance and issuing process against - 6 - HC-KAR NC: 2025:KHC:29582 CRL.P No. 5968 of 2025 the petitioners suffers from a clear legal infirmity. Accordingly, this Court finds merit in the petition and proceeds to pass the following: ORDER (i) The Criminal Petition is allowed. (ii) The impugned order dated 22.02.2025 passed by the learned LXVII Additional City Civil and Sessions Judge, Bengaluru City (CCH-68) in Criminal Revision Petition No.248/2023, as well as the impugned order dated 30.12.2022 passed by the learned XXII Additional Chief Metropolitan Magistrate, Bengaluru, in C.C.No.39623/2022, are hereby set aside. (iii) The matter is remitted to the learned Magistrate, who, before taking cognizance, shall comply with the mandatory requirements of Section 202 of the Code of Criminal Procedure, 1973 by conducting an enquiry as contemplated under the said provision. - 7 - HC-KAR NC: 2025:KHC:29582 CRL.P No. 5968 of 2025 (iv) Upon completion of the enquiry under Section 202 Cr.P.C., if the learned Magistrate is satisfied that sufficient grounds exist to proceed against the petitioners, appropriate orders shall be passed in accordance with law. Pending applications, if any, are also disposed off. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE NBM List No.: 1 Sl No.: 16