JUDGMENT
V.S. Aggarwal, J.
1. Tapash Kumar Mazumdar (for short the petitioner)
is aggrieved by the order passed by the learned
Metropolitan Magistrate dated 24th January, 2000. By
virtue of the impugned order the learned Metropolitan
Magistrate had summoned the petitioner and others for
the offence punishable under Section 138 of the
Negotiable Instruments Act read with Section 420 of
the Indian Penal Code.
2. Some of the relevant facts are that Sumit Martin
Finance Ltd had filed a criminal complaint in which
the petitioner had also been arrayed as a respondent
accused. It had been pleaded that the petitioner is
one of the Additional Directors of Pertch Computers
Ltd. In the course of the business the complainant
had been approached by Pertch Computers Ltd. (for
short the company) through its Managing Director,
Directors and Additional Director in the month of
October 1996 for hire purchase of a large quantity of
computers. The assurance had been given by the
petitioner and others that they would discharge their
debt liability. Acting on the said assurance the
complainant had agreed to enter into the agreement of
hire purchase and thereby to grant hire purchase
facility. The complainant had disbursed an amount of
Rs. 50 lakhs towards the purchase of the equipment and
had given it to the company on hire for a period of
three years. It is alleged to discharge the liability
that had accrued the company had issued two cheques
which were dishonoured on presentment. It is
unnecessary to go into the other details but it has
been asserted that the petitioner is an additional
director of the company and is also the person at the
time of commission of the offence was in charge and
responsible to the company for the conduct of the
affairs of the said company.
3. The learned Metropolitan Magistrate had recorded
the preliminary evidence and thereupon held that after
perusing the allegations in the complaint and the
evidence led thereto a prima facie case appears and
accordingly summoned the petitioner and others for the
above said offences.
4. Aggrieved by the same the present petition has
been filed. It is the assertion of the petitioner
that the learned Metropolitan Magistrate had committed
an error in taking cognizance of the alleged offence.
So far as petitioner is concerned he is stated to be
not the person in charge and responsible to the
day-to-day conduct of the company. There was no
evidence (preliminary evidence) against the petitioner
to satisfy the above said ingredients. It is further
asserted that there is no material to show that
petitioner had induced the complainant and thereby
such an offence had been committed. At best it was
stated that it was a civil liability. Needless to
state that the petitioner as such has been contested
by the complainant.
5. Learned counsel for the petitioner had alleged
that petitioner was not the director of the company
and therefore he could not have been arrayed as the
accused. He has no connection with the affairs of the
said company.
6. So far as this particular contention is
concerned, this indeed relates to the merits of the
matter. At this stage no detailed opinion need be
expressed nor detailed examination would be required.
The preliminary evidence and other material on record
has only to be seen. Consequently for purposes of the
present order only the contention is rejected. The
court is hastening to add that this should not be
taken as an expression of opinion at the subsequent
stage.
7. The main argument of the learned counsel for the
petitioner in this regard had been in terms that in
the preliminary evidence produced before the learned
Metropolitan Magistrate there was no material shown
nor there was any evidence that the petitioner was
in charge and responsible to the company for the
conduct of the affairs of the said company. According
to the learned counsel in the absence of any evidence
rigors of Section 141 of the Negotiable Instruments
Act could not have been drawn in this regard.
Attention of this court was therefore drawn towards
the preliminary evidence that had been produced.
8. To appreciate the said particular controversy
one can refer with advantage to the relevant material
on the record. In preliminary evidence the
complainant had produced Julius Samson, its Vice
President. He had stated that petitioner is one of
the directors of the company. After stating about the
cheques that was presented and dishonoured he added
further:
“…..The respondent No. 2 is the signatory of
the dishonoured cheques in question and is
also the person in-charge and responsible to
for the day to day conduct of the affairs of
the respondent No. 1 company. My complaint is
Ex. CW1/A46 is correct and the same bears my
signatories at point ‘A’ and the same may be
read as part of my evidence.”
In other words, specifically it was not stated in the
preliminary evidence that petitioner was in charge and
responsible to day to day conduct and affairs of the
company. But it had been added that the complaint is
Ex. CW1/A46 and it may be read as part of the
evidence. As already pointed above the learned
Metropolitan Magistrate while passing the impugned
order had recorded specifically that he had gone
through the complaint and the evidence. The short
question therefore that came up for consideration has
been as to whether the trial court was justified in
reading the complaint and issuing summons on that
basis.
9. To keep the record straight reference should be
made to paragraph 36 of the complaint in which
assertions as against the petitioner reads as under:-
“That the respondent/accused No. 2 is the
Managing Director, respondent/accused Nos. 3,
and 4 are the Directors and respondent/accused
No. 5 is the Additional Director of the
respondent No. 1 company, and also being the
person who, at the time of the commissioning
of the offence, were in-charge of and
responsible to the respondent No. 1 company for
the conduct of the affairs of the said
company, are also guilty of the offence
complained of hereinabove particularly, having
regard to the fact that the offence has been
committed to the knowledge of the
respondents/accused Nos. 2 to 5 and that the
said respondents/accused have not exercised
all their due diligence to prevent the
commissioning of the offence. In this view of
the matter and in view of the provisions of
Section 141 of the Negotiable Instruments Act,
1881, the said respondents/accused are also
guilty of the offence and are liable to be
prosecuted and punished therefore.”
In other words in the complaint it had been pleaded
that the petitioner along with others was in charge
and responsible to the company for the conduct of the
affairs of the said company.
10. Chapter XV of the Code of Criminal Procedure
deals with the procedure with respect to complaints to
magistrates. Under Section 200 of the Code of
Criminal Procedure a magistrate taking cognizance of
an offence shall examine on oath and the witness is
present and substance of such examination shall be
reduced into writing. There are two exceptions when
magistrate need not examine the complainant (a) if the
complaint is by a public servant acting or purporting
to act in discharge of his official duties and (b) if
the magistrate makes over the case for inquiry or
trial to another magistrate. Section 203 of the Code
of Criminal Procedure reads:-
203. Dismissal of complaint – If, after
considering the statements on oath (if any) of
the complainant and of the witnesses and the
result of the inquiry or investigation (if
any) under Section 202, the Magistrate is of
opinion that there is no sufficient ground for
proceedings, he shall dismiss the complaint,
and in every such case he shall briefly record
his reasons for so doing.
11. Similarly Section 204 of the Code of Criminal
Procedure provides that if the magistrate finds that
there is sufficient grounds for proceeding he can
issue summons or warrants as deemed appropriate in the
facts of the case. The scheme of the provisions
clearly show that the magistrate is not required to
ignore the contents of the complaint. This is for the
reason that Section 203 of the Code of Criminal
Procedure the magistrate can consider the statements
on oath (if any) or in other words has to act on the
material on the record.
12. In this regard reference can well be made to a
Division Bench decision of this court in the case of
Dhanvinder Singh and Ors. v. State of NCT of Delhi and
Anr. . The Division Bench held that
at the initial stage the court was only constrained to
consider the assertions made in the complaint and the
supporting documents and not the defense of the
accused filing the complaint.
13. Similarly in the case of Pepsi Foods Ltd. and Anr.
v. Special Judicial Magistrate and Anr. the Supreme Court held:-
“Summoning of an accused in a criminal case is
a serious matter. Criminal law cannot be set
into motion as a matter of course. It is not
that the complainant has to bring only two
witnesses to support his allegations in the
complaint to have the criminal law set into
motion. The order of the Magistrate summoning
the accused must reflect that he has applied
his mind to the facts of the case and the law
applicable thereto. He has to examine the
nature of allegations made to the complaint
and the evidence both oral and documentary in
support thereof and would that be sufficient
for the complainant to succeed in bringing
charge home to the accused. It is not that
the Magistrate is a silent spectator at the
time of recording of preliminary evidence
before summoning of the accused. The
Magistrate has to carefully scrutinise the
evidence brought on record and may even
himself put questions to the complainant and
his witnesses to elicit answers to find out
the truthfulness of the allegations or
otherwise and then examine if any offence is
prima facie committed by all or any of the
accused.”
14. More close to the facts of the present case
indeed is the decision of the Kerala High Court in the
case of Ammini Amma v. Sukumaran 1981 Kerala Law
Times 266. Therein too the allegations in the
complaint were looked into before summoning the
concerned person. Almost a similar question came up
for consideration and in paragraph 5 repelling such an
argument the court held:
“The scheme and purport of Sections 200, 203 and
204 of the Code are not sufficient to show
that the averments in the complaint are not to
be looked into for the purpose of taking a
decision either to dismiss a complaint under
Section 203 or to issue process under Section 204 of
the Code. This is made clear by the reference
is Section 203 to the words “if any” occurring
after the words “statement on oath of the
complainant”. This make it clear that
complaint is also, at any rate, one of the
records to be looked into for the purpose of
taking a decision under Sections 203 and 204 of
the Code. It cannot be said that Court can
look into the sworn statement only and not the
complaint itself.”
15. One finds in respectful agreement with the said
view. It is therefore obvious that the learned
Metropolitan Magistrate was justified in not only
considering the preliminary evidence but also the
contents of the complaint. If he has considered the
contents of the complaint there is no illegality in
this regard. Consequently the contentions so much
thought of by learned counsel must fail.
16. No other argument had been raised.
17. For these reasons petition being without merit
fails and is dismissed.