IMPORTANT POINT
Criminal proceeding cannot be terminated at stage of summoning.

Manmohan, J.—Present petitions have been filed by the petitioners under Section 482 of the Code of Criminal Procedure (for short ‘Cr. P.C.’) seeking quashing 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.

2. 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 v. V.K. Vora and Anr.1

3. 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 Section 202 Cr. P.C. is reproduced hereinbelow:-

“202. Postponement of issue of process:-

1. …………..and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:

Provided that no such direction for investigation shall be made:

(a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or

(b) Where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200.

2. If an inquiry under sub section (1), the Magistrate may if he thinks fit, take evidence of witness on oath: provided it appears to the Magistrate that the offence complained of is triable exclusive by the Court of Session, he shall call upon the complainant to produce all his witness and examine them on oath…….”

4. In support of his proposition, Mr. Hazarika relies upon a judgment of the Supreme Court in the case of K.T. Joseph v. State of Kerala and Anr.2 wherein it has been held as under:-

“2. Learned Single Judge has observed that after the amendment to Section 202 of the Code of Criminal Procedure, 1973 (in short “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 precognizance 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……”

5. This Court upon a perusal of the complaint filed by the respondent/complainant finds that there are specific allegations against the present petitioners. The relevant portion of the complaint filed under Section 138 read with Section 141 of the Negotiable Instruments Act is reproduced hereinbelow:

“2. The accused no.1 is a company incorporated under the Companies Act, 1956 with its registered office at West Bengal. Accused Nos. 2 and 6 are directors on the board of the accused no.1 concern, and are in charge of an responsible for the conduct of the day to day business and financial decision making of the accused No.1 Company.”

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“9. ……The accused nos. 2 to 6, being the directors on the board of the accused no.1, and responsible for the day to day functioning and financial decision making of the accused Company, formed the intention to issue the above mentioned cheques in favour of the complainant, knowing fully well that