Disclaimer: This has been reported after the availability of the order of the Court and not on media reports so as to give an accurate report to our readers.
Delhi High Court: In a petition was filed under Section 482, Criminal Procedure Code, 1973 (CrPC) seeking quashment of the summoning order dated 29 April 2023 passed by the Metropolitan Magistrate in a complaint under Section 138, Negotiable Instruments Act, 1881 (NI Act) on the ground that the summoning order was in the nature of a “template order” and did not reflect any application of mind to the facts constituting the alleged offence, a Single Judge Bench of Anup Jairam Bhambhani,* J., declined to interfere with the impugned summoning order under Section 138 NI Act.
Factual Matrix
In the instant matter, the dispute arose from an agreement dated 1 April 2019 under which the respondent entrusted certain construction works to the petitioners and payments were to be released in accordance with agreed timelines. Subsequently, disputes surfaced regarding completion of the project and the financial adjustments between the parties.
A security bond dated 9 April 2021 was executed pursuant to which the respondent released a sum of ₹2,24,71,917/- to the petitioners. Against the said amount the petitioners issued a cheque described as a “security”. The respondent, alleging further defaults in completion of the work, presented the cheque for encashment. The cheque was returned unpaid with the remark “Funds Insufficient”.
Thereafter, a statutory legal notice dated 29 July 2022 was issued and, upon non-payment, a complaint under Section 138, NI Act was filed. Cognizance was taken and summons were issued by the Magistrate and notice under Section 251 CrPC was framed.
Parties’ Contentions
The petitioners contended that the cheque was issued merely as a security instrument under the security bond and could be presented only after written intimation of default and a 45-day cure period. Since no such intimation was given, the presentment of the cheque was contrary to the contractual stipulation. It was urged that the project stood more than 90 per cent completed and corresponding payments had already been received, and therefore, on the date of presentment there existed no “enforceable debt or liability” within the meaning of Section 138.
It was contended that a principal challenge was directed against the summoning order which had been passed in a “perfunctory and mechanical manner” without prima facie examining the essential ingredients of the offence. Reliance was placed upon Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749; Dashrathbhai Trikambhai Patel v. Hitesh Mahendrabhai Patel, (2023) 1 SCC 578 and Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420, to submit that issuance of process must reflect application of mind.
On the other hand, the respondent opposed the petition, submitting that the complaint ex facie disclosed the commission of an offence and that the issuance of the cheque and the signatures thereon stood admitted, thereby attracting the statutory presumption under Section 139, NI Act. It was argued that whether the cheque was issued by way of security or towards discharge of liability was a matter of trial and could not be examined in proceedings under Section 482 CrPC. The respondent emphasised that even a security cheque attracts Section 138 if the underlying liability subsists.
On the aspect of the summoning order, it was contended that a Magistrate is only required to be satisfied that there are sufficient grounds to proceed and is not obliged to pass a detailed or reasoned order. It was also urged that the petition had been filed belatedly after framing of notice under Section 251 CrPC.
Legal Landscape
The Court referred to Sunil Todi v. State of Gujarat, (2022) 16 SCC 762, and reiterated that the scope of inquiry at the pre-summoning stage is limited to determining whether there exists sufficient ground for proceeding and not for conviction. It referred to Pepsi Foods Ltd. (Supra) where the Supreme Court emphasised on the seriousness of setting in motion the process of criminal law against a person and held that taking cognizance and issuing summons is not a mechanical process and there must be sufficient indication in the order that the Magistrate has applied his mind to the allegations and the material on record. Further, it noted that in JM Laboratories v. State of A.P., 2025 SCC OnLine SC 208, the Supreme Court has reiterated that a summoning order passed by a Magistrate should reflect his application of mind and held that
“Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto.”
Court’s Analysis
On examining the impugned order, the Court observed that the Magistrate had set out in detail the procedural steps for issuance and service of summons but had made no reference to certain essential ingredients of the offence under Section 138, such as, the reason for dishonour of the cheque, issuance and receipt of the statutory notice, and compliance with the prescribed timelines.
The Court observed that although it is not necessary for the Magistrate to discuss the factual matrix in detail, the order must reflect satisfaction that sufficient grounds exist for proceeding, since otherwise a court examining the validity of the order would be “bereft of any basis” to assess whether the process had been validly issued.
The Court reiterated the caution that summoning a person in a criminal case is a serious matter and the criminal process must not become a weapon of harassment. Notwithstanding the shortcomings in the drafting of the summoning order, the Court took note that it had itself perused the complaint, the cheque, the dishonour memo, and the statutory notice placed on record.
In the light of peculiar facts of the case and bearing in mind the need for expeditious disposal of Section 138 proceedings, the Court declined to interfere with the summoning order despite the absence of discussion of the ingredients in the order. It vacated the stay granted earlier and directed the Magistrate to proceed with the complaint in accordance with law.
[Aeiforia Constructions (P) Ltd. v. Continental Carbon India (P) Ltd., 2026 SCC OnLine Del 778, decided on 26-2-2026]
*Judgment by Justice Anup Jairam Bhambhani
Advocates who appeared in this case:
Mr. Mrinal Kumar Sharma and Mr. Veer Bhadra Singh, Counsel for the Petitioners
Mr. Gauhar Mirza, Counsel for the Respondent
Buy Code of Criminal Procedure, 1973 HERE
