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TMI Blog2012 (11) TMI 1323X X X X Extracts X X X X X X X X Extracts X X X X ..... ashing of Criminal Complaint No. 650/NA/2012 under Section 138 read with Section 141 of Negotiable Instruments Act, 1881 as well as for setting aside the summoning order dated 2nd July, 2012. Mr. U. Hazarika, learned senior counsel for the petitioners states that the petitioners are independent and non-executive Directors of the Company in question and are not responsible for its day to day affairs. In this connection, he relies upon a judgment of the Supreme Court in the case of K.K. Ahuja vs. V.K. Vora and Anr., (2009) 10 SCC 48. 2. Mr. Hazarika further submits that before passing the impugned summoning order, the trial court has not complied with the mandatory requirement prescribed in Section 202 Cr. P.C. The relevant portion of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code ) with effect from 23-6-2006 by Central Act 25 of 2005 it is mandatory on the part of the learned Magistrate to conduct an enquiry under Section 202 of the Code. Learned Single Judge noted that the Magistrate had emphasized that he was considering the complaint at the pre-cognizance stage which according to him was not correct. By deciding to examine the complainant and the witnesses under Section 202 of the Code, the Magistrate had already taken cognizance of the offence and he was not considering the sworn statements of the witnesses at the pre-cognizance stage. Learned Single Judge felt that enquiry was mandatory after 23-6-2006. 3. The legal position is unexceptionable.... 4. This Court upon a perusal of the complaint f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med in the sworn statement, may be sufficient for the purpose of issuing summons to him.... 6. Keeping in view the aforesaid judgment, this Court is of the opinion that at this stage, the averments in the complaint are sufficient for the purpose of summoning the petitioners. It shall, however, be open to the petitioners to lead evidence before the trial court to show that they are neither whole-time Directors of the Company in question nor involved in its day-to-day management. 7. Undoubtedly, Section 202 Cr. P.C. stipulates that either an enquiry by a Magistrate or an investigation is mandatory in cases where the accused is residing beyond the territorial jurisdiction of the concerned Court. However, the outline of scope of enquiry t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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