MADRAS HIGH COURT
M.V. Muralidaran, J.
Religare Finvest Limited —Petitioners
versus
Joseph John —Respondent
Crl.O.P.No.21968 of 2012 and M.P.Nos.1 and 2 of 2012
Decided on 21.8.2018

IMPORTANT POINT
Summoning order cannot be issued without any prima facie satisfaction.

Headnote:Indian Penal Code, 1860—Sections 120-B, 403, 405, 420, 464, 468, 471 and 499—Criminal Procedure Code, 1973—Section 482—Conspiracy, criminal misappropriation of property, cheating and forgery—Though, there is no necessity on part of Magistrate to pass a detailed speaking order while taking cognizance, but he must record his satisfaction to take the case on file and thereafter order to issue process to accused—In this case, summoning order is issued without any prima facie satisfaction and same is unsustainable—As far as order passed in taking case on file, Magistrate has not followed procedures as contemplated under Section 200 of Cr.P.C.—Question as to whether how many cheques were given to petitioners and for what purpose they have been received, whether company is entitled to fill up cheque in dispute for whole liability or for monthly installment only cannot be decided in application under Section 482 of Cr.P.C.—Impugned order partly quashed and matter remanded back to Judicial Magistrate for fresh consideration based on procedure laid down under Section 200 of Cr.P.C.

       Held: Though, there is no necessity on the part of the learned Magistrate to pass a detailed speaking order while taking cognizance, but he must record his satisfaction to take the case on file and thereafter order to issue process to the accused. In this case, the summoning order is issued without any prima facie satisfaction and the same, in the considered opinion of this Court is unsustainable.

       As far as the order passed in taking the case on file, the learned magistrate has not followed the procedures as contemplated under Section 200 of Cr.P.C. Further the learned Magistrate has simply recorded that he perused the complaint and the statement and came to a conclusion that the offence as stated in the complaint are made out. In the considered opinion of this Court, the said order is nothing but unsustainable. Moreover the same is to be remanded back for reconsideration by setting aside the said order.

       As far as quashing the proceedings in the Calendar Case No.16 of 2012 in the opinion of this Court the same cannot be accepted as it is involved the mixed question of facts and law. Here the question as to whether how many cheques were given to the petitioners herein and for what purpose they have been received, whether the company is entitled to fill up the cheque in dispute for the whole liability or for the monthly installment only cannot be decided in this application under Section 482 of Cr.P.C.

       At this juncture this Court is having an occasion to have perusal of the judgment of the Hon’ble Supreme Court in Bholu Ram vs. State of Punjab & Anr. on 29 August, 2008, wherein it is held that:

        45. The correctness of K.M. Mathew again came up for consideration before a three-Judge Bench of this Court in Adalat Prasad v. Rooplal Jindal & Ors., (2004) 7 SCC 338. In Adalat Prasad, the accused, after issuance of summons against him by the trial Magistrate, filed an application under Section 203 of the Code for dismissal of complaint recalling the order of summons. After hearing the parties, the Magistrate granted the prayer and recalled the summons. The order of the Magistrate was challenged by the complainant in the High Court inter alia on the ground that the Magistrate had no jurisdiction to recall the earlier order. The High Court allowed the petition. The accused approached this Court.

        61. It was after the dismissal of revision filed by the State that respondent No.2 moved the Judicial Magistrate to recall the earlier order. The learned Magistrate held that in view of dismissal of revision by the Additional Sessions Judge, an application to recall the order was not maintainable. But the Court also stated:

        “No doubt summoning order is on interim order and not a judgment and the same can be reviewed or recalled by the Magistrate. Proceedings against the accused can be dropped of the complaint on face of it does not disclose any offence against him. In the present case, my learned predecessor after going through the statements of examined prosecution witnesses found that there is prima facie offence made out against the accused Sher Singh. Only thereafter accused/applicant She Singh was summoned vide summoning order dated 22.1.1996 passed by Sh. Varinder Aggarwal, PCS, the then Judicial Magistrate, 1st Class, Barnala”.

        Therefore from the above discussion, it is held that the petition filed by the petitioners to quash the proceedings in C.C.No.16 of 2012 on the file of the learned Judicial Magistrate No.3, Salem is not fit for consideration and the same is hereby dismissed to that extent. At the same time the summoning order of the learned Magistrate dated 18.06.2012 is hereby quashed as the same has no reflection either about the examination of complainant or the satisfaction of the learned Magistrate to take the case on file. Therefore, the matter is remanded back to the learned Judicial Magistrate No.III, Salem for fresh consideration based on the procedure laid down under Section 200 of Cr.P.C. The said exercise has to be completed within a period of 7 days from the date of receipt of a copy of this order and thereafter the same may be proceeded in accordance with law. Consequently, connected miscellaneous petitions are closed. (Paras 14 to 18)

       Result: Criminal Original Petition dismissed.