IMPORTANT POINT
Person complained against can be legally called upon to answer accusations made against him only when a process has issued and he is put on trial.

S.P. Garg, J.—Present petition under Section 482 Cr.P.C. has been filed by the petitioners for quashing of complaint case bearing No. 58/1 of 2011 and order dated 07.03.2012 by which they were summoned to face trial for committing offences under Sections 417/418 IPC. Respondent No.2 has contested the petition.

2. I have heard learned Senior Counsel for the petitioners and counsel for the respondent No.2 and have examined the record. Respondent No.2 sole proprietor of M/s. Payless International was granted Bill Discounting Facility to the extent of Rs. 1 crore with a maximum tenure of 120 days which was to expire on 01.11.2008. On 21.10.2008, respondent No.2 tendered two Bills of Exchange for USD 129868.80 and 130723.20 to be sent to National Bank of Dubai for collection on account of M/s. Desert Trip Trading Dubai. Petitioner No.1 discounted the bills and paid a sum of Rs. 1 crore to the respondent No.2 on 23.10.2008. Subsequently, Letter of Variation dated 23.06.2009 was executed whereby terms and conditions were modified. It was to expire on 17.12.2009. The sanction terms were again amended vide Amendatory Agreement dated 17.12.2009 which was to expire on 31.03.2010. On 14.12.2009, the respondent No.2 tendered two Bills of Exchange for USD 98,496 and 81,691.20 to be sent to National Bank of Dubai for collection on account of M/s. Max Trading Dubai. The petitioner No.1 discounted the said export bills to the extent of INR 79.30 lacs and adjusted the discounted proceeds against the overdue bills of M/s. Desert Trip Trading Company. Since the Bank did not receive any payment from National Bank of Dubai, it adjusted a sum of Rs. 20,57,884.33/- being the maturity proceeds of fixed deposit and another sum of Rs. 9,979.47/- being credit amount in the account of respondent No.2. Respondent No.2 did not pay the remaining dues despite requests and notice dated 20.07.2010 was issued to call upon him to pay a sum of Rs. 80,50,742.61/- along with interest @ 9.75% p.a. w.e.f. 20.07.2010. The Bank presented the cheque 062126 dated 23.07.2010 issued by respondent No.2 in its favour towards discharge of the civil liability amounting to Rs. 80 lacs. On presentation, the cheque was dishonoured for the reasons ‘payment stopped by drawer’ vide return memo dated 23.07.2010. The petitioner No.1 received foreign remittance of USD-5000 equivalent to INR 2,31,789.70 and USD- 2500 equivalent to INR 1,14,539.70/- from Max Target Trading subsequently for which necessary adjustment were given towards outstanding dues. Total liability of Rs. 76,553,670.60/- existed against the dishonoured cheque after adjustment. The Bank filed complaint No. 640/2010 under Section 138 Negotiable Instruments Act in which respondent No.2 was summoned and the said proceedings are pending. Learned Senior counsel urged that the summoning order cannot be sustained as it was based upon surmises and conjectures and was passed without application of mind. Delay for one year after issuance of notice under Section 138 Negotiable Instruments Act has not been explained. The complainant did not disclose as to how the outstanding amount of Rs.80 lacs or so was not payable by him. The complainant enjoyed various financial facilities from time to time and did not make the payment for which the proceedings under Section 138 Negotiable Instruments Act were instituted. The facility of 2009 was a mere extension / renewal of the original facility and all the documents and cheque submitted at the time of the original facility were to remain in force. The cheque in question was never demanded back by the complainant. He never reported to the bank about its loss/ misplacement. There is no document to show that the bank ever misrepresented him that the cheque was lost by it. Status report filed by the police was not dealt with in the impugned order. The petitioners No.2 & 3 never dealt with the complainant and no role has been attributed to them. They can’t be held liable under the concept