Point of Law: if the accused appears after service of summons, the learned Metropolitan Magistrate shall ask him to furnish bail bond to ensure his appearance during trial and ask him to take notice under Section 251 Cr.P.C. and enter his plea of defence and fix the case for defence evidence, unless an application is made under Section 145(2) of N.I. Act for recalling a witness for cross-examination on by an accused of defence. If there is an application u/s 145(2) of N.I. Act for recalling a witness of complainant, the court shall decide the same, otherwise, it shall proceed to take defence evidence on record and allow cross examination of defence witnesses by complainant. Once the summoning orders in all these cases have been issued, it is now the obligation of the accused to take notice under Section 251 of Cr.P.C. if not already taken and enter his/her plea of defence before the concerned Metropolitan Magistrate's Court and make an application, if they want to recall any witness. If they intend to prove their defence without recalling any complainant witness or any other witnesses, they should do so before the Court of Metropolitan Magistrate.

JUDGMENT :

RAJNISH BHATNAGAR, J.

1. The present petition U/s 482 Cr.P.C. has been filed by the petitioner with the following prayers:-

“It is therefore most respectfully prayed that this Hon’ble Court be pleased to set aside the impugned order dated 16.12.2020 passed in Revision Petition No. 97/2020, by the learned District and Sessions Judge, West District, Tis Hazari Courts, Delhi, and quash the complaint filed by the Respondent no. 2, being C.C. No. 7398/19, pending before the Metropolitan Magistrate, West District, Tis Hazari Courts, Delhi against the petitioner.”

2. The facts of case are that in January 2009, accused No. 2 Guneet Bhasin accused No. 3 Sumit Bhasin (Petitioner herein) and accused No. 4 Smt. Summy Bhasin approached Respondent No. 2/Complainant and allured him into investing Rs. 50 lacs in their company with the assurance that same would be doubled in five years and relying on such assurances, he invested his lifetime savings with them and in March 2014 the accused persons failed to return the principal amount with interest being total of Rs. 1 Crore but then he was further inducted to invest Rs. 20 lacs more with the promise to return Rs. 2 crores on or before March 2019 and that MoU dated 26.07.2018 was executed, whereby accused persons undertook to pay the complainant a sum of Rs. 47,53,519/- and a cheque was also issued; and that later MoU dated 05.05.2019 was executed and it was promised that the complainant would be made a partner in the business and receipt of Rs. 50 lacs as principal amount was retained with the promise that it would be safe and secure with them and it would become Rs. 2 crores in 2019 and that on 18.02.2019 another Promissory Note was issued by accused No. 2/Guneet Bhasin in favour of the complainant and his wife acknowledging liability to pay an amount of Rs. 2,47,53,000/- payable to the complainant and his wife on or before 30.06.2019.

3. On 16.07.2019 nine cheques were issued in the tune of Rs. 73,00,000/-. The said cheques on presentation were dishonored, and while cheque at Sr No. 1 was dishonored for the reasons “account closed” the bank returning memos in respect of other cheques from S. Nos. 2 to 9 came with the remarks “kindly contact drawer.”

4. On receipt of such returning memos dated 17.07.2019, Respondent No. 2 served a legal notice dated 12.08.2019 upon the accused persons, which were duly served upon them and even replied through their counsel vide reply dated 27.08.2019, but since no payment was made under the cheque, the complaint was filed on 19.9.2019 by respondent no 2/Complainant.

5. The Petitioner has assailed the Order dated 04.10.2019 vide which he was summoned by the Ld. MM for offences U/s 138 of the N.I. Act The Petitioner has approached this Hon'ble Court already having availed opportunity under S. 397 Cr.P.C. wherein the Ld. District and Sessions Judge, District West - Tis Harari Courts has dismissed the Revision petition vide Order dated 16.12.2020 The Petitioner seeks quashing of the present proceedings inter-alia on grounds that while he is admittedly a Director, however, he did not sign the cheques in question nor he ever participated in the transactions in question and merely because he was Director of the company at the relevant time does not make him vicariously responsible for the acts and omissions on the part of the remaining Directors or the accused company itself and hence has no role in the offence.

6. It is vehemently urged by the counsel of the petitioner that there are no allegations against the petitioner as to what role he played in the issuance of cheque and there is no clear averment that he was in charge or responsible for the day to day affairs of the company, It was further submitted that summoning order has far reaching consequences and the impugned order suffers from complete non-application of mind. In his submissions, learned counsel has place reliance upon:

(a) Sudeep Jain vs. ECE Industries, (2013) 201 DLT 461

(b) National Small Industr