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2025 DIGILAW 327 (HP)

Rameshwar Guleria v. Ashwani Guleria

2025-03-10

RAKESH KAINTHLA

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JUDGMENT : Rakesh Kainthla, J. 1. The respondent/complainant filed a complaint against the petitioner/accused before the learned Judicial Magistrate, First Class, Indora (learned Trial Court) for taking action against him for violation of Section 138 of Negotiable Instruments Act (in short ‘NI Act’). 2. Learned Trial Court passed the following orders on18.11.2024: “Ms. Vandana Pathania, learned Advocate for the complainant. Be Registered. Notice be issued to accused for25.02.2025.” 3. Being aggrieved from the order passed by learned Trial Court, the petitioner/accused has approached this Court by filing the present petition. 4. I have heard Mr. Virender Thakur, learned counsel for the petitioner and Mr. Naresh Kaul, learned counsel for the respondent. 5. Mr. Virender Thakur, learned counsel for the petitioner has submitted that the order passed by learned Trial Court does not show the application of mind which is necessary before issuing of summons. He relied upon the judgment of Hon’ble Supreme Court in J.M. Laboratories v. State of A.P., 2025 SCC OnLine SC 208, in support of his submission. 6. Mr. Naresh Kaul, learned counsel for the respondent has fairly conceded that he is not in a position to support the order passed by learned Trial Court. 7. It was laid down by Hon’ble Supreme Court in J.M. Laboratories (supra) that an order issuing summons to the accused is a serious matter and the learned Magistrate is required to apply his mind to conclude that there exists sufÏcient reasons for summoning the accused. It was observed: 8. In the judgment and order of even date in Criminal Appeal Arising out of SLP (Crl.) No. 2345 of 2024 titled INOX Air Products Limited Now Known as INOX Air Products Private Limited v. The State of Andhra Pradesh, we have observed thus: “ 33. It could be seen from the aforesaid order that except recording the submissions of the complainant, no reasons are recorded for issuing the process against the accused persons. 34. In this respect, it will be relevant to refer to the following observations of this Court in the case of Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749 (supra): “ 28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. 34. In this respect, it will be relevant to refer to the following observations of this Court in the case of Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749 (supra): “ 28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufÏcient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” 35. This Court has clearly held that summoning of an accused in a criminal case is a serious matter. It has been held that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. This Court held that the Magistrate is required to examine the nature of allegations made in the complaint and the evidence, both oral and documentary in support thereof and as to whether that would be sufÏcient for proceeding against the accused. It has been held that the Magistrate is not a silent spectator at the time of recording of preliminary evidence before summoning the accused. 36. It has been held that the Magistrate is not a silent spectator at the time of recording of preliminary evidence before summoning the accused. 36. The said law would be consistently following by this Court in a catena of judgments including in the cases of Sunil Bharti Mittal v. Central Bureau of Investigation, (2015) 4 SCC 609 , Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420 and Krishna Lal Chawla v. State of Uttar Pradesh, (2021) 5 SCC 435 . 37. Recently, a Bench of this Court to which one of us (Gavai, J.) was a Member, in the case of Lalankumar Singh v. State of Maharashtra, 2022 SCC OnLine SC 1383 (supra), has observed thus: “ 38. The order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufÏcient ground for proceeding exists in the case or not. The formation of such an opinion is required to be stated in the order itself. The order is liable to be set aside if no reasons are given therein while coming to the conclusion that there is a prima facie case against the accused. No doubt, that the order need not contain detailed reasons. A reference in this respect could be made to the judgment of this Court in the case of Sunil Bharti Mittal v. Central Bureau of Investigation 9 which reads thus: “ 51. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufÏcient ground for proceeding. This section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e. the complaint, examination of the complainant and his witnesses, if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused. 52. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. 52. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction. 53. However, the words “sufÏcient ground for proceeding” appearing in Section 204 are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufÏcient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect.” 39. A similar view has been taken by this Court in the case of Ashoke Mal Bafna (supra). 40. In the present case, leaving aside there being no reasons in support of the order of the issuance of process, as a matter of fact, it is clear from the order of the learned Single Judge of the High Court, that there was no such order passed at all. The learned Single Judge of the High Court, based on the record, has presumed that there was an order of issuance of process. We find that such an approach is unsustainable in law. The appeal therefore deserves to be allowed.” 9. In the present case also, no reasons even for the namesake have been assigned by the learned Magistrate. The summoning order is totally a non-speaking one. We find that such an approach is unsustainable in law. The appeal therefore deserves to be allowed.” 9. In the present case also, no reasons even for the namesake have been assigned by the learned Magistrate. The summoning order is totally a non-speaking one. We therefore find that in light of the view taken by us in criminal appeal arising out of SLP (Crl.) No. 2345 of 2024 titled INOX Air Products Limited Now Known as INOX Air Products Private Limited v. The State of Andhra Pradesh and the legal position as has been laid down by this Court in a catena of judgments including in the cases of Pepsi Foods Ltd. v. Special Judicial Magistrate (Supra), Sunil Bharti Mittal v. Central Bureau of Investigation (Supra), Mehmood Ul Rehman v. Khazir Mohammad Tunda (Supra) and Krishna Lal Chawla v. State of Uttar Pradesh (Supra), the present appeal deserves to be allowed. 8. In the present case also, the reasons have not been given by learned Trial Court, therefore, the order passed by learned Trial Court cannot be sustained. 9. In fairness to the learned counsel for the petitioner, he has also submitted that notice does not comply with the requirement of Section 138 of NI Act, since, the learned Magistrate has to apply his mind to determine whether the accused is summoned, therefore, it will be open to the learned Magistrate to look into this aspect as well, and this Court is not required to give any finding regarding the same at this stage. 10. Learned counsel for the petitioner has submitted that the complaint is also liable to be set aside as per the judgment of J.M. Laboratories (supra), however, the said conclusion does not follow from the judgment. Since, summoning order is bad, therefore, only summoning order can be set aside and nothing is required to be said regarding the merits of the complaint. 11. Consequently, the present revision is allowed and order dated 18.11.2024 passed by learned Trial Court is ordered to be set aside. 12. The complainant is directed to appear before learned Trial Court on 24.03.2025. A copy of this order be sent to learned Trial Court for information.