9911796707
TMI Blog2022 (4) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner herein Abhijit Kavade, manager of HDFC Bank along with two other persons have been arrayed in complaint case No.C-16913/2011 before learned Chief Metropolitan Magistrate, Calcutta to answer the allegation revealed under sections 406/409/120B of the Indian Penal Code. The petitioner herein who has been described as accused No. 3, on the basis of summon issued against him, approached this court to quash the proceeding on some grounds. 2. The allegations levelled in the said complaint is that complainant/OP-2 placed an order for supply of paper mills equipments for modification of paper machine with accused No. 1 namely R.D. Desai, proprietor of D.S. Engineer on 30th September, 2009 for a sum of Rs. 75,69,380/-. In the said orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eased to transfer the same to the court of the learned Metropolitan Magistrate , 14th Court, Calcutta for disposal. Subsequently the Metropolitan Magistrate 14th Court, Calcutta, vide his impugned order dated 27.07.2011, after taking cognizance, issued summon upon petitioner herein and other two accused persons. 5. Learned Counsel appearing on behalf of the petitioner submits that subsequent to receiving the copy of claim letter sent by OP-2 for the said guarantee money the petitioner/bank authority issued a letter dated 01.12.2011, requesting the accused No.1 to make arrangement of fund. He further submits that subsequent to receiving the claim letter and preparing the demand draft in favour for OP-2, the petitioner herein /bank authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that pursuant to the complaint petition filed by OP-2 herein, the Metropolitan Magistrate 14th Court, Calcutta by his order dated 27.07.2011 noted the following order :- " On behalf of the complainant affidavit and some document are filed. Perused the petition of complainant, affidavit and document. Hd. Ld. Advocate for the complainant , considered. A prima facie case u/s-138 of N.I. Act appears to exist. Issue summons to the accused fixing 1.12.11 for S/R & appearance. Complainant is to file requisite. Documents are returned to the complainant after perusal." 8. I am anguished to note that the entire order which forms the very basis of issuing summon upon the accused persons, including the present petitioner, has been acted in a me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive and cruel disregard shown by a judicial magistrate. 9. It is by now well-settled that although the word "cognizance" has not been described in the Code of Criminal Procedure but under section 190 of the Code of Criminal Procedure, cognizance of offence by magistrate said to have taken when the magistrate takes notice of the acquisition and applies his mind to the allegations made in the complaint and on being satisfied that the allegations, if proved would constitute an offence, only then he decides to initiate the judicial proceeding against the offender by issuing summon. "Taking cognizance of an offence" is not a mere formality. Before taking cognizance magistrate is to apply his judicial mind to see, if on the fact alleged there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ractically no order at all and since the very basis of the proceeding which cognizance is a sine qua non, is taken without going through the contents of complaint ,affidavit and document, so such cognizance is non-est in the eye of law . As aforesaid defect goes to the vary root of the matter the issuance of summon by the magistrate concerned in C-16913/2011 cannot be said to be sustainable in the eye of law and same is liable to be quashed. 11. Accordingly entire proceeding in C-16913/2011/T.R. 500/11, before Metropolitan Magistrate 14th Court, Calcutta is quashed. The revisional application accordingly allowed. However, it is made clear that this order will not preclude the parties to pursue their case otherwise maintainable any legal re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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