2013 (2) TMI 227 - HC - Companies Law

Cheques bounced - summons issued - Held that - It is not in dispute that the complaint was presented with regard to bouncing of Cheque but there is no mention in the summoning order with regard to the said cheque. It clearly shows that without perusing the complete facts, the Judicial Magistrate Ist Class, Chandigarh, has passed the summoning order as a matter of routine. The summoning of a person to face trial is a serious matter as it may jeopardise the liberty of a person. Therefore, the Magistrate has to apply his mind after taking into consideration the correct facts and then to pass a summoning order. The said test has not been applied in the case in hand. Therefore, the impugned summoning order is hereby set aside & matter is remitted back to the Judicial Magistrate Ist Class, Chandigarh, to pass fresh orders in accordance with law.

Summary

Issues:
1. Quashing of Criminal Complaint No. 15688 of 2007 under Section 138 of the Negotiable Instruments Act.

Analysis:
The petition was filed under Section 482 of the Cr.P.C. seeking the quashing of Criminal Complaint No. 15688 of 2007 along with the summoning order passed by the Judicial Magistrate Ist Class. The disputed cheque in question was alleged to have bounced, leading to the complaint. The petitioners argued that the summoning order was passed without proper application of mind as it did not mention the specific cheque number. The counsel for the respondent conceded the absence of discussion regarding the cheque in question in the summoning order.

Analysis Contd.:
The High Court noted that the complaint was related to the bouncing of a specific cheque, yet the summoning order did not reference this crucial detail. The Court emphasized that summoning an individual for trial is a serious matter that could impact their liberty, thus requiring the Magistrate to carefully consider all facts before issuing such an order. As the Magistrate had not applied this test in the present case, the summoning order was set aside, and the matter was remitted back to the Magistrate for a fresh order based on a thorough examination of the facts in accordance with the law.

Analysis Contd.:
The Court directed the respondent-complainant to appear before the Magistrate on a specified date and instructed for a copy of the order to be sent to the Magistrate promptly. Consequently, the criminal miscellaneous application was disposed of, highlighting the importance of due diligence and proper application of legal principles in issuing summoning orders to safeguard the rights and liberties of individuals involved in legal proceedings.