JUDGMENT By the Court.—A learned Single Judge has referred the following questions of law by order dated 23 August, 2006 for resolution by the Full Bench: “(a) As to whether the procedure prescribed by the code of criminal procedure for conducting the trial can be altered under Section 482 of the Cr. P. C., for achieving the ends of justice. (b) can the accused be allowed to give his defence and can be heard and give evidence to prove his innocence at or soon after the summoning stage. (c) can a person who has not been summoned to face trial and no allegations in the complaint have been made against him in the complaint can approach the Court for adjudication on his plea that he has committed no offence and cannot be proceeded with. (d) Whether the order dated 28.11.2006 was beyond the scope of Section 482 of the Cr.P.C.” 2. Mr. I.B. Singh, learned Senior Advocate appearing as Amicus Curiae, at the outset, invited our attention to the reference order and submitted that in the facts of the present case, such a reference was not necessary. He submitted that the order dated 28.11.2003, which has been referred to in the reference order, does not issue any direction as such nor the order dated 13.7.2006 has been passed on the basis thereof. He further submitted that the order dated 28.11.2003 would not come in the way in proceeding with the trial, as per the procedure laid down under the provisions of the Code of Criminal Procedure, 1973 (in short ‘Code’). It was also pointed out that the trial in the present case got over long back and the accused persons have been discharged. Revision against the discharge order has also been dismissed, against which a writ petition is now pending. 3. We have carefully perused the order dated 23.8.2006. It would be relevant to reproduce the relevant portion of the order, which reads thus: “The Chief Judicial Magistrate, Lucknow after taking cognizance of offence punishable under Section 138 of the Negotiable Instruments Act had summoned the accused opposite parties vide order dated 2.6.03, for facing trial in the above said offence. We have carefully perused the order dated 23.8.2006. It would be relevant to reproduce the relevant portion of the order, which reads thus: “The Chief Judicial Magistrate, Lucknow after taking cognizance of offence punishable under Section 138 of the Negotiable Instruments Act had summoned the accused opposite parties vide order dated 2.6.03, for facing trial in the above said offence. This above said summoning order dated 2.6.03 was challenged before this Court, in petition under Section 482 of the Cr.P.C. and this Court, in this petition under Section 482 of the Cr.P.C., vide orders dated 28.11.2003, copy of which has been filed as annexure No. 4, disposed of this petition and gave certain directions, to the trial Court, option was given to the managers of the institute, newly elected & old manager to file their objections. The old manager, who had signed the cheque, was also given an opportunity for praying for deletion; both the accused were given the opportunity for being heard, for deletion of their names in the column of accused, as no offence is made out. The trial Court in pursuance of these orders, on the application of old manager who was one of the signatory of the disputed cheque and the new manager, dismissed the complaint and discharged the accused. An appeal against this order dated 11.8.2005 was filed and learned Additional Sessions Judge vide the impugned order treated this appeal as revision and dismissed the appeal/revision, forgetting the fact that scope of both these proceedings are entirely different and the Court was not exercising the powers of the appellate Court, while hearing this appeal/revision, made reappraisal of whole evidence weighed the evidence and on basis of it dismissed the appeal treating it to be a revision. Although the order of this Court dated 28.11.2003 is or was not under challenge, the question which has arisen in this petition relates to that order because on basis of this order the complaint has been dismissed, and will come in the way for proper disposal of the complaint. Although the order of this Court dated 28.11.2003 is or was not under challenge, the question which has arisen in this petition relates to that order because on basis of this order the complaint has been dismissed, and will come in the way for proper disposal of the complaint. No legislative enactment dealing with procedure can provide for all contingencies that may possibly arise, so non-availability of an effective remedy always empowers the Court to take appropriate action so as to protect an innocent citizens and secure the ends of justice, in deserving cases, the facts of this case make it clear that the order of the Court dated 28.11.2003 is coming in the way in proceeding with the trial, as per procedure laid down by the code, the order of this Court dated 28.11.2003 has been and is being and may be interpreted in a manner which could not have been, the intention of the Court, accused could not have been heard at that stage when opportunity to them was given by this Court and scrutiny of allegation could not have been made at the stage when this opportunity was given, and also at the stage when the petition under Section 482 of the Cr.P.C. was filed, the defence of accused could not have been considered, has to be kept in mind. The normal rule is that no scrutiny of allegations which have been made, in the complaint can be made, till the accused had put in his appearance, the accused can only be heard at appropriate stage and in the manner provided in the Code of Criminal Procedure. The procedure prescribed in the code could not have been altered, while passing orders under Section 482 of the Cr.P.C.” (emphasis supplied) 4. In view of the highlighted observations made in the above order, we have perused the order dated 28.11.2003 passed in Criminal Misc. Case No. 1321 of 2003. In the misc. case, the petitioners challenged the summoning order dated 2.6.2003 passed in Complaint Case No. 63 of 2002 under the Negotiable Instruments Act (in short N.I. Act). In view of the highlighted observations made in the above order, we have perused the order dated 28.11.2003 passed in Criminal Misc. Case No. 1321 of 2003. In the misc. case, the petitioners challenged the summoning order dated 2.6.2003 passed in Complaint Case No. 63 of 2002 under the Negotiable Instruments Act (in short N.I. Act). The relevant observations made in the said order read thus: “In the case in hand petitioners are aggrieved against the summoning order dated 2.6.2003 contained in annexure No. 3 to the petition passed in proceedings of complaint relating to case No. 63 of 2002 under Negotiable Instrument Act in which petitioners have been impleaded as party and not the new Manager. Even Sri Kunwar Mradeul Rakesh stressed that Ms Ge ta is still principal of the institution and she is still ready and accepts that the payment is to be made to respondent No. 2 but the newly elected Manage after 13.9.2002 refused to signed the said cheques. Act the things be as they are indirect that newly elected Manager of the Institution be also made a party in the complaint filed by opposite party No. 2 and the Court below after issuing notice to the newly impleaded party i.e. Manager of the Institution, may proceed with the complaint case in accordance with law. However it is left open for the accused persons i.e. old Manager who was existing before 13.9.2002 as well as thereafter the new Manager of the Institution to move an application before the Court concerned for deletion of their names in the column of the accused on the ground that no offence under Section 138 of the Negotiable Instrument Act is made out and the Court concerned before proceeding any further shall take into consideration the said application and dispose of expeditiously. With the above said directions and observations this petition stands finally disposed of.” (emphasis supplied) 5. From bare perusal of the above order, it is clear that no direction as such was issued. As a matter of fact, it is clear from the highlighted portion of the order that the learned Single Judge kept all options open and did not record his final opinion on any question that were raised. From bare perusal of the above order, it is clear that no direction as such was issued. As a matter of fact, it is clear from the highlighted portion of the order that the learned Single Judge kept all options open and did not record his final opinion on any question that were raised. Still in order to ascertain whether the order dated 28.11.2003 in any manner influenced the proceedings, we have perused the order dated 13.7.2006 against which Writ Petition No. 3942 (M/S) of 2006 has been filed and pending for disposal, and in which, reference order has been passed. The relevant portion of the said order reads thus: “Having heard the learned counsel for both the parties and having bone through the record. and I am of the view that when the allegations are in about the commission of the offence punishable under Section 138 of N.I. Act are made in respect of a company then the substance of the allegations made in the complaint must full-fill the requirement of Section 141 of N.I. Act though in construing the complaint hyper technical approach should not be adopted, so as to quash the same or to discharge the accused. The Hon’ble Supreme Court has referred law of Moneben Ketanbhai Shan and another v. State of Gujrat and others, 2006 SCCr. R. 687. Supreme Court has been pleased to observe that criminal liability under Section 141 of the Act may be fastened on those who at the time of the commission of the offence was in charge of and was responsible to the Firm for the conduct of the business of the firm. Further Hon’ble Supreme Court has been pleased to hold that: “The primary responsibility is on the complainant to make necessary averments in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every partner knows about the transaction. The obligation of the appellants to prove that at the time, the offence was committed they were not in charge of and were not responsible to the firm for the conduct of the business of the firm would arise only when first the complaint makes necessary averments in the complaint and establishes that fact. The obligation of the appellants to prove that at the time, the offence was committed they were not in charge of and were not responsible to the firm for the conduct of the business of the firm would arise only when first the complaint makes necessary averments in the complaint and establishes that fact. The present case is of total absence of requisite averments in the complaint.” I have gone through the complaint but I found that the complainat has not discharged its primary responsibility to ever in the complaint that the Manager and Principal of the college were responsible to the college for the conduct of the absence of the college hence the present case is of total absence of requisite averment in the complaint. In case law of K.P.G. Nair v. Jindal Menthol India Ltd., JT 2000 (Suppl. 1) SC 519 : (2001) 10 SCC 218 , this Court held that the substance of allegations read as a whole should answer and fulfill the requirements of the ingredients of Section 141. For the reason aforesaid above, I do not find justify to revive the order of summoning the accused persons by recalling the order of the summoning and the complaint extremely lack requisite qualification and so the accused was rightly discharged. Before parting with, I would like to comment that the criminal appeal against the order of discharge in the complaint case is not maintainable but I am passing this order while treating criminal appeal as a criminal revision.” 6. From perusal of the observations made in the order dated 13.7.2006, which is under challenge in the instant writ petition, we do not find any reference having been made to the order dated 28.11.2003 or that influenced the Court below. In other words, as has been rightly submitted by Mr. Singh, learned Senior Advocate, appearing as Amicus Curiae, we do not find any directions as such in the order dated 28.11.2003 nor we find that the order dated 13.7.2006 is passed having been influenced by the said order (dated 28.11.2003) or that the said order came in the way in proceeding with the trial, as per the procedure laid down by the Code. From the contents of the order dated 28.11.2003, we are satisfied that the learned Single Judge did not issue any directions as such and we find that all the issues were kept open, including granting a liberty to the original accused and the added accused to file objection or an application for deletion of their names, if they desire and advised. Thus, it cannot be stated that this Court in exercise of the powers under Section 482 of the Code had issued any directions as such prescribing the procedure inconsistent with the procedure prescribed by the Code for conducting trial. In other words, it cannot be stated that by the order dated 28.11.2003, this Court, in exercise of the powers under Section 482 of the Code altered the procedure contemplated under the provisions of the Code. 7. Insofar as the questions (b) and (c) are concerned, it is for the trial Court to adopt the procedure, as contemplated under the provisions of the Code read with the provisions of N.I. Act while dealing with the case under Section 138 of the N.I. Act. Thus, we find that the order dated 28.11.2003 is not beyond the scope of Section 482 of the Code. 8. Consequently and in the light of the above, we find that the questions referred for our consideration do not arise at all in the facts of the present case. We, therefore, return the reference made to the Full Bench, leaving it open for resolution of any such question, if arise for consideration, in appropriate case. The Registry is directed to place the Writ Petition No. 3942 (M/S) of 2006 before the appropriate Court for its disposal on merits.