The court emphasized the importance of following the correct procedure in criminal cases and held that the court of sessions did not have jurisdiction to review the summoning order.

1. The appellant had instituted a criminal complaint alleging offence under Section 138 of the Negotiable Instruments Act, 1881 (N.I.Act) having been committed by the respondent, such complaint having been presented on 21.12.2000 before the then Chief Metropolitan Magistrate, Delhi. The said complaint case resulted in preliminary inquiry under Sections 200 and 202 of the Code of Criminal Procedure, 1973 (Cr.P.C.) by the court of Metropolitan Magistrate resulting in issuance of process under Section 204 Cr.P.C. by order dated 18.08.2001. Subsequently, the case stood transferred to the court of Additional Sessions Judge pursuant to the certain directions then issued by this court transferring the jurisdiction over the prosecution of complaint cases under Section 138 of the N.I. Act from the courts of Metropolitan Magistrate to the Sessions courts.

2. While the matter was thus pending on the file of the court of Additional Sessions Judge, the respondent appeared. The proceedings recorded in its wake indicate that, by order dated 17.02.2003, the court of Sessions directed defence evidence to be adduced, this without notice of accusation under Section 251 Cr.P.C., or in terms of summary procedure which could have been applied, having been issued or served on the respondent. Some evidence in defence was adduced. The respondent moved an application seeking recall of the summoning order. The said application which came up for consideration was allowed by the impugned order dated 09.09.2003 resulting in the complaint being dismissed, the net result being that the respondent stood acquitted.

3. The criminal appeal at hand was presented, with leave of this court, challenging the above conclusion of the complaint case.

4. The respondent on being noticed has appeared to resist the appeal. Reliance is placed on S.K. Bhalla vs. State & Ors., 180 (2011) DLT 219, in particular observations (in para 15) to the effect that it is the bounden duty of the trial court to carefully go through the allegations made in the charge sheet/complaint and consider the evidence to come to a conclusion whether or not commission of the offence is disclosed and if the answer is in the negative, the court is bound to discharge the accused. Noticeably, the said observations were recorded against the backdrop of criminal complaint alleging offence punishable under Section 509/199 of the Indian Penal Code, 1860 (IPC). In a prosecution under Section 138 of the N.I. Act, the presumption in Section 139 also has to be borne in mind.

5. Though the impugned order does not say so explicitly, it is clear that the learned court of sessions assumed that it had the power and jurisdiction to revisit and review the summoning order in terms of the decision of the Supreme Court reported as K.M. Mathew vs. State of Kerala & Anr., (1992) 1 SCC 217. But then, by a subsequent decision of a bench of three Hon’ble Judges of the Supreme Court, reported as Adalat Prasad vs. Rooplal Jindal & Ors., (2004) 7 SCC 338, the judgment of K.M. Mathew (supra) was overruled. It was held that after issuance of process on the criminal complaint, there was no jurisdiction or power available in the court of Metropolitan Magistrate to review the said order, the only remedy available being by a petition under Section 482 Cr.P.C. before the High Court. This was reiterated by another bench of three Hon’ble Judges of the Supreme Court in Subramanium Sethuraman vs. State of Maharashtra & Anr., (2004) 13 SCC 324. In identical fact-situation, by similar order, in judgment reported as Asia Metal Corporation (HUF) vs. State & Anr., 130 (2006) DLT 545, a learned Single Judge of this court set aside the order passed to this effect resulting in acquittal of the accused in such proceedings.

6. Aside from the fact that the court of sessions passing the impugned order did not have any jurisdiction of review of the summoning order, it is also noticed that the procedure adopted was against the settled principles. Even i