The Trial Court erred in not considering the petitioners' application for recall of the summoning order and the statement of account filed by the respondent, which showed no outstanding amount except for sales tax liability that was wiped out by the submission of C-Forms.

( 1 ) I have heard the parties. Since common questions of law and facts are involved in all cases, I am disposing of all these petitions by this common order.

( 2 ) THE petition arises out of an order of summoning passed by the Metropolitan Magistrate on an application of the accused whereby the said order is sought to be recalled by the said Magistrate. The complaints in the present cases arose out of dishonour of ten cheques amounting to a total sum of Rs. 2,06,31,571. 00. It was pointed out that the petitioner No. 3 was a dealer of respondent No. 1 Maruti Udyog Limited under an agreement of dealership and was engaged in sale of various kinds of vehicles, spare parts and also rendering after sale service to the purchasers of vehicles manufactured by respondent No. 1. The said dealership was terminated on 31. 8. 1994 which am informed, has been challenged by the petitioner by means of a civil suit.

( 3 ) THE said cheques were issued by the petitioners purporting to be payments being made from time to time in discharge of their dealership liability towards booking of vehicles and sale of spare parts etc. The said cheques were presented for encasement, but on presentation those were dishonoured with the remarks "effects not cleared". Following the dishonour of the cheques, it has been submitted that the dishonoured cheques alongwith the bank s memo returning the cheques were returned to the petitioners. Thereafter a notice under Section 138 of Negotiable Instruments" Act was given, which remained unreplied. The respondent has contended that the original dishonoured cheques alongwith the memo of the bank returning the cheques, were returned on the representation of the petitioners that they will arrange payment in lieu of these cheques. Incidently, there is no such mention in the notice under Section 138 of Negotiable Instruments Act although before that the cheques and the memos of dishonour had already been returned. By return of such cheques, the respondent/complainant ceased to be "holder in due course". It also was left with no right to file a summary suit under Order 37 of Civil Procedure Code. after parting with the said negotiable instruments.

( 4 ) THE petitioners filed an application before the learned Magistrate stating that the accounts had been adjusted between the parties and it was as a consequence of such adjustment that the original cheques and the memos returning the cheques were returned because there was no amount due and outstanding. Although it was not necessary at this stage for the respondent to place on record anything, yet they in reply filed a statement of account based on its own books of account. Therefore, for the purposes of the present application, the Magistrate could always look into that statement of account as it had emanated from and had been placed on record by respondent/complainant. The said statement does not show any amounts outstanding except the amount of Rs. 509. 53 lacs, which represented the amount of sales tax which had been debited on account of non-receipt of C-Forms. It is not disputed that the sales tax assessment has not yet been made. The liability to pay sales tax for non-submission of C-Forms could arise only when the assessment is made. If C-Forms are submitted before assessment, there could be no question of any sales tax liability. Admittedly no final assessment has so far been made by the Sales Tax Officer. Under law, the sales tax liability could arise only on assessment, which had admittedly not taken place and which stood wiped out by supply of C-Forms during the pendency of the case before the Court. In this connection, a reference be made to the decision of Division Bench of Calcutta High Court comprising of Hon ble Mr. Justice Sabyasachi and Hon ble Mr. Justice R. N. Pine in the case of Mahata Brothers Vs. Additional Member, Board of Revenue, West Bengal, reported as 1975 (36) STC 582 and another case of State of Tamil Nadu Vs. Chellaram Garments (