Section 202 inquiry in cheque dishonour complaints can rest on affidavit and documents; enforceable debt is for trial, not summoning.

In complaints under Section 138 of the Negotiable Instruments Act, 1881, where the accused resides beyond the Magistrate's territorial jurisdiction, the mandatory Section 202 CrPC inquiry can be satisfied on the basis of the complainant's affidavit and supporting documents, read with Section 145 of the NI Act, and need not require oral examination of witnesses if the Magistrate is otherwise satisfied that sufficient grounds exist to proceed. At the summoning stage, the Magistrate is not required to construe the underlying share sale and purchase agreement or finally determine whether a legally enforceable debt exists, because that issue falls within the defence and trial. The decision confirms that only prima facie ingredients of the offence need be assessed before issuing process.

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Issues: (i) Whether the Magistrate was required to conduct the mandatory inquiry under Section 202 of the Code of Criminal Procedure, 1973 before issuing summons in complaints under Section 138 of the Negotiable Instruments Act, 1881 against an accused residing beyond territorial jurisdiction; (ii) Whether, at the summoning stage, the Magistrate was required to examine the underlying share sale and purchase agreement to determine the existence of a legally enforceable debt before issuing process.

Issue (i): Whether the Magistrate was required to conduct the mandatory inquiry under Section 202 of the Code of Criminal Procedure, 1973 before issuing summons in complaints under Section 138 of the Negotiable Instruments Act, 1881 against an accused residing beyond territorial jurisdiction.

Analysis: The statutory inquiry under Section 202 is mandatory where the accused resides outside the territorial jurisdiction of the Magistrate. In complaints under Section 138 of the Negotiable Instruments Act, 1881, the inquiry may be conducted on the basis of the complainant's affidavit and supporting documents, read with Section 145 of that Act. The inquiry need not necessarily involve examination of witnesses on oath, and the Magistrate may confine the exercise to satisfaction that sufficient grounds exist for proceeding. The summoning orders reflected consideration of the complaint, pre-summoning evidence and documents, and therefore showed compliance with the statutory requirement even though Section 202 was not specifically mentioned in express terms.

Conclusion: The mandatory inquiry under Section 202 of the Code of Criminal Procedure, 1973 was duly conducted and the summoning orders were not vitiated on that ground.

Issue (ii): Whether, at the summoning stage, the Magistrate was required to examine the underlying share sale and purchase agreement to determine the existence of a legally enforceable debt before issuing process.

Analysis: The existence or non-existence of a legally enforceable debt based on the conditions in the agreement is a matter of defence and proof at trial. By virtue of the presumption under Section 139 of the Negotiable Instruments Act, 1881, a cheque is presumed to have been issued in discharge of a debt or liability, subject to rebuttal by evidence. At the stage of issuance of summons, the Magistrate is only required to ascertain whether the basic ingredients of the offence under Section 138 are prima facie made out on the basis of the complaint and pre-summoning evidence. Requiring a detailed examination of the agreement at that stage would amount to conducting a full trial before summons, which is impermissible.

Conclusion: The Magistrate was not required to adjudicate the existence of a legally enforceable debt by construing the agreement at the summoning stage.

Final Conclusion: The summoning order challenged in one petition was upheld and the revisional order setting it aside was reversed, while the connected challenge to the other summoning order was rejected, with both complaints proceeding in accordance with law.

Ratio Decidendi: In complaints under Section 138 of the Negotiable Instruments Act, 1881, the Section 202 inquiry for an accused residing outside jurisdiction may be satisfied by consideration of the complainant's affidavit and documents, and the Magistrate need only determine prima facie compliance with the ingredients of the offence without entering into the merits of the defence or the detailed question of legally enforceable debt.

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