IMPORTANT POINT
The judgment emphasized the limitations on the power of the Magistrate to recall summons and the necessity of evidence for determining the service of notice.

JUDGMENT :

Rakesh Kainthla, J.

The present petition is directed against the order 18.02.2022, passed by learned Judicial Magistrate, First Class, Court No.4, Shimla, vide which application filed by the petitioner (accused/applicant before the learned Trial Court ) seeking the dismissal of the complaint was rejected. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present petition are that the learned Trial Court summoned the accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (NI Act). When the accused appeared before the learned Trial Court, he filed an application under Section 138 (b) of the NI Act. He asserted that he belongs to a BPL family. He had taken Rs.30,000/- as a loan from Bhagat Ram Deshta, father of the complainant and handed over a blank cheque as security to him. The accused paid the aforesaid loan together with an interest to Bhagat Ram Deshta. He demanded the cheque but he was told that the cheque was washed away with the clothes and accused should not worry about the same. The accused believed this representation and did not take any steps for the return of the cheque. The cheque was misused by the complainant, who filled the amount in the blank cheque without the consent of the accused. The parties are not even known to each other, as the complainant is residing in Shimla. The accused did not receive any notice except the summons of the Court. The accused filed an application to supply the copies of the documents. However, copies of the documents were not supplied to him. Prosecuting the accused who belongs to a BPL family and resides at Rohroo is an abuse of process of Court. The father of the accused is Malku Ram, whereas the name of his father was mentioned in the complaint as Tika Ram, which falsifies the version of the complainant that the parties are known to each other. The complaint is not maintainable without serving a notice upon the accused. No legal notice was ever served upon the accused and the cause of action had not arisen to the complainant. Therefore, it was prayed that the present complaint be dismissed.

3. The application was opposed by the complainant denying the contents of the application. The learned Trial Court held that the complaint can be dismissed under Section 203 of Cr.P.C. when there is insufficient ground for proceedings against the accused and under Section 204(4) of Cr.P.C. on technical grounds. There is no other provision in the Code of Criminal Procedure or the Negotiable Instruments Act to dismiss the complaint. The question whether the notice was served upon the accused or not is related to the merits and the complaint cannot be dismissed on the ground that no notice was ever served upon the accused.

4. Being aggrieved from the order passed by the learned Trial Court, the present petition has been filed, asserting that the notice dated 04.08.2016 was not received due to the wrong address mentioned in the notice. The documents were not supplied to the applicant-accused and no reply to his application under Section 207 of Cr.P.C. was filed by the complainant. The record was destroyed by the postal authorities after the expiry period of two years. The adjournment was granted subject to the payment of the cost of Rs.200/- and the cost was not paid. The reply could not have been taken on record without revising the earlier order. The acceptance of the reply by the learned Trial Court is illegal. The fact that the name of the father of the accused was wrongly mentioned, establishes that the parties are not known to each other. The service of the notice is essential, without which the complaint is not maintainable; therefore, it was prayed that the present petition be allowed and the order passed by the learned Trial Court dated 18.02.2022 be set aside.

5. I have heard Mr. Bhag Chand Sharma, learned c