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2006 (12) TMI 239 - HIGH COURT OF DELHIChallenging summoning orders by certain directors/partners - Dishonour of cheque - complaints u/s 138 and 142 of the Negotiable Instruments Act, 1881 (‘NI Act’) - Liability cast on persons who may have something to do with the transaction complained of u/s 141 - HELD THAT:- In view of the judgment of the Supreme Court in Adalat Prasad’s case [2004 (8) TMI 647 - SUPREME COURT], after summoning orders are passed by the trial court, it has no power to recall the same and in that case, the remedy available to the aggrieved party is to approach the High Court alone by filing petition u/s 482 of the CrPC. Because of this position in law, the responsibility of the Magistrates to carefully examine the complaint and the pre-summoning evidence before issuing the summons becomes paramount. It is observed that not only the summons are issued against all those who are impleaded as directors where the prime accused is the company even when there are no averments thereagainst sometimes even without taking care as to whether other ingredients under sections 138, 142 of the NI Act are prima facie satisfied or not. Summoning an accused in a criminal case is not an empty formality. The court issuing process u/s 204 of the Cr.PC has to be satisfied on the basis of complaint, document and other material on record that, there are sufficient grounds for proceeding against him (See Charanjit Singh v. D. B. Merchang Banking Services Ltd.[2001 (3) TMI 1061 - DELHI HIGH COURT]. In a criminal case, it is for the complainant to allege and make out all the ingredients of the offence before calling upon the court to proceed against an accused. Only those presumptions which are permissible under the law are permitted to be raised against an accused. All other facts are required to be established by the complainant/prosecution. 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 in motion. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers in order to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. See Pepsi Foods Ltd. v. S. J. Magistrate [1997 (11) TMI 518 - SUPREME COURT]. No doubt, the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but the accused is entitled to approach the High Court u/s 482 of the CrPC or article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him, instead of having to undergo the agony of a criminal trial. After discussing the legal position and analysing the principles which have evolved, let me now deal with each case at hand. In this petition specific averment is made by the petitioner that he was neither a director of the company nor at all incharge of the company nor involved in day-to-day running of the company at the time of commission of the alleged offence in February and March 1999 when the cheques were dishonoured. What is stated is that the petitioner had resigned from the company on 4-2-1998 and copy of Form 32 was also submitted with the Registrar of Companies. Certified copy of Form 32 issued by the office of the Registrar of Companies is enclosed as per which, the petitioner resigned with effect from 4-2-1998. Cheques in question are dated 31-12-1998, which were issued much after the resignation of the petitioner as the director and were dishonoured subsequently and notice of demand is also dated 8-2-1999 on which date the petitioner was not the director, as certified copy of Form 32 obtained from the Registrar of Companies is filed indicating that the resignation was also intimated on 26-2-1998, which can be acted upon in view of judgment of this Court in Saria Kumar (Dr.)’s case (supra). The summoning order qua the petitioner is liable to be quashed. It is accordingly quashed and the complaint qua him is dismissed. Petitions are disposed of.
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