( 1 ) THIS case demonstrates as to how Sh. Prem Kumar the learned Additional Sessions judge consciously tried to ignore the verdict given by Hon ble Supreme Court in K. M. Mathews Vs. State of Kerela (1992) 1 supreme Court 217 and dismissed the applications of the petitioners seeking recall of the summoning order for the offence punishable under Section 138 of the negotiable Instrument Act vide order dated 26. 4. 2003 by conveniently taking the shelter under the judgment of this Court delivered in mohd. Hashim Masood Vs. State reported in 2000 (1) JCC Delhi 24 as if he was bound by the view taken by the High Court and not by the Supreme Court. on the proposition of law whether the accused is entitled to move the Magistrate for dropping the proceedings in a complaint case even after the process of summon has. been issued against him.

( 2 ) FACTS germane for the proposition of la are like this:- m/s. SBI Capital Markets. Ltd. filed a complaint under Section 138 of negotiable Instrument Act against M/s. Prakash Industries Ltd and Ors. its managing director, Vice President (General) and two General Managers. They were summoned as accused vide order dated 9. 7. 99 by the Metropolitan magistrate. By administrative order of the High Court, the complaints under section 138 of Negotiable Instrument act were transferred to the Courts of additional Sessions Judges and this case was assigned to Sh. Prem Kumar, learned Additional Sessions Judge, New delhi. Feeling aggrieved of the summoning order the petitioners moved an application before the learned ASJ for recalling the summoning order or for dropping the proceedings against them. The said applicatfon was dismissed by the learned ASJ on the ground that the learned trial court does not have power to recall, review, alter or vary the summoning order and, therefore, the same cannot be considered. To be fair to the learned ASJ he referred to the K. M. Mathews case relied upon by learned counsel for the petitioners wherein following view was taken by the Supreme Court: -

"it is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried, it is his judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused. "

( 3 ) AFTER taking notice of this judgment the learned ASJ referred to Nilamani Routray vs. Ben net Coleman and Company Ltd. reported in 1998 t8) SCC 594 a case that came up before the Hon ble Supreme Court on the question of power of trial court in this regard. Learned ASJ has referred to the following observations of the Supreme court-

"it has been contended on behalf of the appellant that K. M. Mathew Case requires reconsideration for it is settled law that a power of review has to be conferred by law specifically or by necessary implication and the Code of criminal Procedure does not confer such power. Since we find that there is some substances in the above contention it is desirable that the matter be heard by a Bench of three Judge".

( 4 ) INSPITE of the fact that in Nilmani Routary s case no law was" laid down as was laid down in k. M. Mathews case as Hon ble Supreme Court only found substance in the contention made on behalf of the appellant in Nilmani s case and deemed it desirable that the matter be heard by Bench of three Judges, learned ASJ had the audacity to ignore the dictum of supreme Court in K. M. Mathew s case.

( 5 ) THE learned ASJ did not stop here. He referred to the judgment of Delhi High Court by Single Judge in Mohd.