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TMI Blog2011 (8) TMI 1384X X X X Extracts X X X X X X X X Extracts X X X X ..... filed a complaint against (i) M/s. Rashmi Builders, a partnership firm, (ii) Ashwinkumar Tribhovandas Shah and (iii) Chandravadan Gopaldas Thakkar in the Court of Judicial Magistrate, First Class, Prantij. It was alleged in the complaint that M/s. Rashmi Builders (Accused No. 1) is a duly registered partnership firm and Ashwinkumar Tribhovandas Shah (Accused No. 2) and Chandravadan Gopaldas Thakkar (Accused No. 3) are its partners. On the recommendation and advise of one Balkabhai alias Himatlal Dwarkadas Lal, a financial broker, the complainant lent and advanced a sum of Rs. 5 lakhs to the firm. The firm through its partner Ashwinkumar Tribhovandas Shah acknowledged the receipt of the said amount and also executed and delivered a promissory note for Rs. 5 lakhs on the same date. Later in discharge of its liability, the firm through its partner (Accused No. 2) issued a cheque for Rs. 5 lakhs drawn on the Federal Bank of India, Fort Branch, Bombay and delivered the same to Balkabhai alias Himatlal Dwarkadas Lal who handed over the said cheque to the complainant along with the promissory note. The complainant presented the said cheque for encashment on May 31, 1999 with his Banker bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. (2) Where such person is not attending the court, he may be arrested or summoned, as the circumstances of' the case may require, for the purpose aforesaid. (3) Any person attending the court although not under arrest or upon a summons, may be detained by such court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the court proceeds against any person under Sub-section (1), then- (a) The proceedings in respect of such person shall be commenced afresh, and witnesses re-heard: (b) Subject to the provisions of Clause (a), the case may proceed as if such person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced. 8. The ambit and scope of the power of the Court under Section 319 of the Code has come up for consideration before this Court on more than one occasion. 9. In Joginder Singh and Anr. v. State of Punjab and Anr. (1979) 1 SCC 345, this Court stated that the power conferred under Section 319(1) of the Code is applicable to all courts including a Sessions Court and the Court has power to add any person, not being the accused before it, against whom t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the court is only a discretion as could be discerned from the words the court may proceed against such person . The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the court should turn against another person whenever it comes across evidence connecting that other person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the court to proceed against other persons. xxx 14. The court while deciding whether to invoke the power under Section 319 of the Code, must address itself about the other constraints imposed by the first limb of Sub-section (4), that proceedings in respect of newly added persons shall be commenced afresh and the witnesses re-examined. The whole proceedings must be recommenced from the beginning of the trial, summon the witnesses once again and examine them and cross-examine them in order to reach the stage where it had r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g in an order for his being brought before the court. 13. In Krishnappa v. State of Karnataka (2004) 7 SCC 792, this Court reiterated what has been repeatedly stated that the power to summon an accused is an extraordinary power conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. 14. In Palanisamy Gounder and Anr. v. State represented by Inspector of Police (2005) 12 SCC 327, this Court referred to two earlier decisions of this Court in Michael Machado3 and Krishnappa5 and observed that power under Section 319 of the Code cannot be exercised so as to conduct a fishing inquiry. 15. In Guriya alias Tabassum Tauquir and Ors. v. State of Bihar and Anr. (2007) 8 SCC 224 most of the above decisions were referred to and it was observed that the parameters for dealing with an application under Section 319 of the Code have been laid down in these cases. 16. The legal position that can be culled out from the material provisions of Section 319 of the Code and the decided cases of this Court is this: (i) The Court can exercise the power conferred on it under Section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) The court must, therefore, appropriately consider the above aspects and then exercise its judicial discretion. 17. Now, if the order of the High Court is seen, it would transpire that after noticing the provisions contained in Section 319 and its scope, the High Court proceeded to hold that the order of the Magistrate did not call for any interference. The High Court, however, failed to consider whether Magistrate has addressed to the essential aspects before invoking his power under Section 319 of the Code. Moreover, the High Court did not advert to the question whether or not filing of copy of registration of the firm by Accused Nos. 2 and 3 would be covered by expressions 'in the course of any inquiry into or trial' and 'evidence' occurring in Section 319 of the Code and also the aspect as to whether such document could be treated as an evidence to show that the Appellant (newly added accused) has committed an offence of cheating under Section 420 IPC. As regards the criminal liability of 10 a partner in the firm, in light of the provisions contained in Section 141 of the N.I. Act, there has to be evidence that at the time the offence was committed, the partner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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