Mandatory Section 202 inquiry before process in cheque dishonour complaints; non-compliance renders the order unsustainable.

Where amended Section 202 of the Code of Criminal Procedure applies, the Magistrate must conduct the prescribed limited inquiry before issuing process in a complaint under Section 138 of the Negotiable Instruments Act. That inquiry is confined to a prima facie assessment and is not a full trial; at that stage the Magistrate may consider the statutory presumptions under Sections 118 and 139 of the Negotiable Instruments Act and Section 27 of the General Clauses Act. Process issued without complying with this mandatory procedure was unsustainable, so the order issuing process was set aside and the matter remanded for reconsideration under Section 202.

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Issues: Whether, in a complaint under Section 138 of the Negotiable Instruments Act, 1881, the Magistrate could issue process without following the amended procedure under Section 202 of the Code of Criminal Procedure, 1973.

Analysis: The amended Section 202 requires the Magistrate to undertake the prescribed inquiry before issuing process where the law so mandates. The inquiry is confined to ascertaining whether there is a prima facie case, and it is not intended to be an exhaustive trial. While performing that limited scrutiny, the Magistrate may take into account the statutory presumptions under Sections 118 and 139 of the Negotiable Instruments Act, 1881, as well as the presumption under Section 27 of the General Clauses Act, 1897. The order issuing process was passed without following this mandatory procedure, and therefore could not be sustained.

Conclusion: The order issuing process was set aside and the matter was remanded to the Magistrate for reconsideration after following Section 202 of the Code of Criminal Procedure, 1973.

Ratio Decidendi: Where the amended Section 202 of the Code of Criminal Procedure, 1973 applies, compliance with the prescribed inquiry before issuance of process is mandatory, and process issued without such compliance is liable to be quashed and remanded for fresh consideration.

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