JUDGMENT
V.M. Jain, J.
1. This order shall dispose of above mentioned two petitions under Section 482 Cr. P.C. filed by the petitioners, seeking quashment of the warrants of arrest issued against the petitioners by the JM1C, Ludhiana, in the proceedings undet Section 138 of the Negotiable Instruments Act. The facts which are relevant for the decision for the present petitions are that M/s Shreyans Spinning Mills (complainant-respondents) filed acomplaint under Section 138 of the Negotiable Instruments Act read with Section 420 IPC against the following :
1. M/s Surya Marketing Associates, 24, Surya Gardens, Peelamedu, Coimbatore – 641004 through its partners.
2. Mr. Mani alias Sethumadhavan, Partner, M/s. Surya Marketing Associates, 24, Surya Gardens, Peelamedu, Coimbatore – 641004.
2. This complaint was filed in the Court of JM1C, Ludhianaand is dated 21.2.1995. The complainant produced preliminary evidence on various dates and thereafter the learned JMIC, Ludhiana vide order dated It). 1.1997 found that a prima facie case was made out against the accused for the offence under Section 138 of the Negotiable Instruments Act and accordingly the accused were ordered to be summoned foj 13.2.1997. However, the accused could not be served with the summons. Thereafter, warrants of arrest against the accused were also ordered, but the accused could not be summoned even after the issuance of warrants of arrest.
3. Vide order dated 5.2.1999, the learned trial Magistrate, after noticing that warrants of arrest of the accused had not been received back, ordered issuance of fresh warrants of arrest of the accused for 9.3.1999. On 9.3.1999, the complainant filed an application dated 9.3.1999, giving the names of various partners of accused No. I M/s Surya Marketing Associates, as under:
(i) Mrs. K. Krishna Veni w/o Mr. Kannappam, 24, Sitrya Gardens, Peelamedu, Coimbatore.
(ii) Smt. Sujini Balaji w/o v. Balaji, No. 11 Vincent Colony, R.S. Puram, Coimbatore.
(iii) Smt. K. Surela Devi w/o C. Rejendran, No. 5. RamlingaNagar, llnd Layout Saibaba Colony, Coimbatore.
4. It was further alleged in the said application that Mrs. K. Krishana Veni had signed-and issued cheques in the presence of Mrs. Sujini Balaji and Smt. K. Surela Devi. It was also alleged in this application that the Court had issued non-bailable warrants of M/s Surya Marketing Associates through its partners, which was not executable because of non-mentioning of the names of the partners. It is accordingly prayed that non-bailable warrants of the partners as mentioned above, may be issued. When this application was filed on 9.3.1999, the case was adjourned to 26.3.1999 for consideration of the application. Vide order dated 28.5.1999, the learned trial Court passed the following order :
“Present: Complainant in person.
The complainant has been directed to adduce evidence for the purpose of proving averments as alleged in the application. The file to come up on 8.7.1999 for evidence of the complainant for this purpose.
Sd/-
JMIC/28.5.1999″
5. Thereafter, further evidence of PW-2 was recorded and the case was fixed for consideration. On 5.11.1999, after hearing the arguments, the learned Judicial Magistrate, Ludhiana passed order dated 5.11.1999, ordering the summoning of the accused under Section 138 of the Negotiable Instruments Act. In pursuance of the said order dated 5.11.1999, the warrants of arrest of various accused, named above, were issued. Thereupon, the above mentioned two petitions were filed in this Court, by Smt. Krishna Veni, Smt. Sujini Balaji and Smt. R. Sarladevi, challenging the issuance of arrest warrants against them.
6. Notice of motion was issued. Trial Court record was summoned.
7. I have heard the learned counsel for the parties and have gone through the record carefully.
8. As referred to above, the complainant had originally filed thecomplaint against M/s Surya Marketing Associates “through its partners” as accused No. 1 and Mr. Mani alias Sethumadhavan, partner of M/s Surya Marketing Associates as accused No. 2. Thereafter, after recording preliminary evidence, the learned Magistrate had passed the order of summoning dated 10.1.1997, summoning the accused under Section 138 of the Ne-
gotiable Instruments Act. Thereafter, the summons were issued. Since the summons could not be served, warrants of arrest were also issued against the accused- Thereafter, the complainant moved application dated 9.3.1999 giving the namesof three partners of the firm of M/s Surya Marketing Associates, pray ing that non-bailable warrants of those partners as accused be also issued. The learned Magistrate, vide order dates 28,5.1999 called upon the complainant to adduce evidence for bringing the averments alleged in -the application. Thereafter, PW2 Pawan Kumar was recalled “for further-cum-additional evidence”. Thereafter, the learned Magistrate passed an independent order dated 5.11.1999, summoning the accused for the offence under Section 138 of the Negotiable Instruments Act. A perusal of the said order dated 5.11.1999 passed by the learned Magistrate would show that it is an independent order of summoning the accused, passed by, the learned Magistrate for the offence under Section 138 of the Negotiable Instruments Act, without even giving reference to the earlier order of summoning dated 10.1.1997 passed by the Judicial Magistrate while ordering the summoning of the accused in this case for the offence under Section 138 of the Negotiable Instruments Act. The complaints are instituted and preliminary evidence is led under Section 200 Cr. P.C. Thereafter, after considering the statements on oath of the complainant and witnesses if the Magistrate is of the opinion that there is no sufficient ground for proceeding, he can dismiss the complaint giving brief reasons for doing so, as required under Section 203 Cr. P.C. However, if in the opinion of the Magistrate, there is sufficient ground for proceedings, the Magistrate shall order issuance of summons/warrants for the attendance of the accused as required under Section 304 Cr. P.C.
9. In the present case, after filing of the criminal complaint, the complainant had produced preliminary evidence. Thereafter, vide order dated 10.1.1997, the learned Magistrate had ordered the summoning of the accused for the offence under Section 138 of the Negotiable Instruments Act, initially by ordering issuance of summons and thereafter since summons could not be served by ordering the issuance of warrants against the accused, The learned Magistrate had already crossed the stage of Section 204 Cr. P.C. when the learned Magistrate had passed the order of summon ing the accused. If the summons/warrants could not be served/executed against the accused, the learned Magistrate was fully competent to proceed further in the matter in accordance with law. When the application dated 9.3.1999 was submitted before him by the complainant, giving names of the partners of accused No. I-M/s Surya Marketing Associates, the learned Magistrate, was competent to take action thereon in accordance with law. However, instead of doing so, the learned Magistrate directed the complainant, vide order dated 28.5.1999, to adduce evidence for the purpose of proving averments as alleged in the said applica- -tion. Thereafter, as referred to above, the complainant re-examined PW-2 Pawan Kumar, who was “recalled for further-cum-additional examination in chief and thereafter, on 16.8.1999. In my opinion, once the order of summoning had already been passed against the accused, there was absolutely no occasion for the complainant to adduce “further-cum-additional evidence”. Similarly, there was no occasion for the learned Magistrate to have again passed the order of summoning dated 5.11.1999, being an independent order of summoning, without even referring to the earlier order of summoning already passed by him on 10.1.1997, The learned Magistrate had proceeded with the assumption as if he was passing order of summoning for the first time on 5.11.1999, forgetting that order of summoning had already been passed on 10.1.1997 and he had already crossed the stage of Section 204 Cr. P.C. Instead of dealing with the application dated 9.3.1999 in accordance with law, the learned trial Magistrate recorded further/additional evidence of the complainant and again passed the order of summoning on 5.11.1999. In my opinion, the learned Magistrate exceeded his jurisdiction while recording further/additional evidence ‘treating it as preliminary evidence) and thereafter passing fresh order of summoning against the accused, especially when the preliminary evidence had already been recorded and the order of summoning had already been passed on the basis of the preliminary evidence already recorded.
10. In my opinion, this action of the learned Magistrate has resulted in mis-carriage of justice and requires interference by this Court, in exercise of its inherent powers under
Section 482 Cr,P.C.
11. For the reasons recorded above, these petitions are allowed and the order dated 5.11.1999 passed by the learned Magistrate and subsequent proceedings taken thereon are ordered to be quashed. The learned Magistrate would now proceed with the matter in accordance with law. The learned Magistrate shall deal with the application dated 9.3.1999 in accordance with law.
12. Since the trial Court file was summoned in this Court, the office is directed to send back the file to the learned trial Court immediately with a copy of this order for strict compliance.
Complainant-respondent M/s Shreyans Spinning Mills, through its counsel, is directed to appear before the learned trial Magistrate on 22.12.2000 for further proceedings in accordance with law.
13. Petitions allowed.