IMPORTANT POINT
Trial court not expected to function like Post Office and to mechanically frame notice, but bound by law to apply its mind to find out, whether prima facie case made out against accused or not.

Ved Prakash Vaish, J.—These are three petitions filed under Section 482 of Code of Criminal Procedure, 1973 (hereinafter after referred to as “Cr.P.C.”) read with Article 227 of Constitution of India impugning the order dated 12.10.2010 passed by learned Metropolitan Magistrate, New Delhi.

2. Since all these three petitions have arisen out of order dated 12.10.2007 and the question involved in all the petitions are similar, therefore, all the petitions are being disposed of together by this common order.

3. The concise facts giving rise to the present petitions are that respondent No.2 had filed a complaint under Section 138 of Negotiable Instruments Act, 1881 (for short, “NI Act”) in respect of dishonour of cheques in each complaint case. Despite service of notice, petitioners had failed to make the payment of cheques. Thus, respondent No.2 had filed a complaint for the offence punishable under Sections 138/142 of NI Act against the petitioners. Vide impugned order dated 12.10.2010, learned trial court took cognizance and summoned the petitioners. Feeling aggrieved by the said order, the petitioners have preferred the present petitions.

4. Learned counsel for the petitioners contended that according to the complainant, the petitioners had availed friendly loan against which cheques were issued by way of security in favour of the complainant. He also submitted that the cheques in question were issued in discharge of any legally enforceable debt or other liability and, therefore, the provisions of Section 138 of NI Act are not attracted. The other submission of learned counsel for the petitioners are that the notice of demand sent by respondent No.2 before filing the complaint was not sent at the correct addresses. The notices were alleged to have been sent by courier and in the absence of delivery receipts showing services of notice upon the petitioners, the complaint is not maintainable.

5. Per contra, learned counsel for respondent No.2 complainant urged that the petitioners obtained friendly loan from respondent No.2 complainant and issued the cheques towards repayment of said loan. The said cheques were dishonoured and the respondent complainant sent notice of demand to the correct address of the petitioners and the petitioners had received the said notices but failed to make the payment of amount of cheques in question.

6. I have given my thoughtful consideration to the submissions made by learned counsel for the parties and perused the material on record.

7. After taking into account the imperative facts of the instant case, this Court is of the opinion that inherent powers of this Court under Section 482 of Cr.P.C. are not required to be invoked to quash the proceedings arising out of the complaints in question, in view of the judgment of Hon’ble Supreme Court of India in Bhushan Kumar & Anr v. State of (NCT of Delhi) & Anr. (2012) 2 DLT (Cri.) 139 (SC), wherein it was observed that:

“8. Under Section 190 of the code, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of inquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code.

9. A summon is a process issued by a Court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to violation of law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person and the date and time on which the person must appear in Court. A person who is summoned is legally bou