Supplementary affidavit filed today is taken on record.
Learned A.G.A. is present for the state.
Issue notice to opposite party no. 2 returnable at an early date.
List immediately after service. Steps be taken within seven days through registered post, failing which the interim order which is being passed herein below shall come to an end.
Learned counsel for the petitioner submits that the applicant happens to be Managing Director and Chief Executive Officer of ICICI Bank Towers, Bandra Kurla Complex, Mumbai. Opposite party no. 2 took loan in the year 2004, the installments whereof were being paid but one cheque was bounced and therefore a complaint under Section 138 Negotiable Instrument Act was filed, on account of which, he had to appear before the Court below and seek bail. Earlier in 2002 one loan was applied by one Vishnu Kumar Saini, a name similar to opposite party no. 2 which was sanctioned. Due to inadvertent mistake a notice was given to opposite party no. 2 in respect of the loan which was sanctioned to Vishnu Kumar Saini in the year 2002. However on realising the operational error mistake was rectified. But probably feeling aggrieved by the aforesaid complaint case against him, he filed a false complaint under Sections 416, 417, 420, 463, 464, 465, 466, 467 I.P.C. in retaliation. The Court concerned rejected that complaint. It was then challenged by means of a criminal revision which was allowed on 21.07.2009 and the matter was remitted back to the Court of Magistrate to decide the matter in accordance with law. Thereafter, the impugned order dated 31.08.2009, was passed by the learned Magistrate summoning the petitioner under the aforesaid Sections. It is emphasized that though the petitioner resides at Mumbai, which is a place beyond the area in which the learned Magistrate has exercised jurisdiction i.e. Lucknow. But the learned Magistrate ignored the newly added provisions of Section 202 Cr.P.C. in respect of issuing process against the accused residing beyond his jurisdiction, according to which before summoning the accused residing beyond his jurisdiction he ought to have inquired into the case himself or directed investigation to be made by a police officer or by such other persons as he thought fit, for finding out whether or not there was sufficient ground for proceeding against the accused. He merely passed the summoning order in a routine manner.
Perusal of the impugned order prima facie shows that the aforesaid contention has substance.
In view of the above mentioned facts and circumstances, as an interim measure it is provided that till the pendency of this petition, proceedings of the Complaint Case No. 7168 of 2006, pending in the Court of Special Chief Judicial Magistrate (Custom), Lucknow, including the order regarding bailable/non bailable warrant, issued against the petitioner, shall remain stayed.
Order dated 13.1.2010 ML/-