Recall of summons is unavailable in cheque dishonour complaints, and BIFR restraint orders do not automatically bar prosecution.

A Magistrate has no inherent power to recall summons or discharge an accused at the threshold in a Section 138 Negotiable Instruments Act complaint, so a recall-based challenge cannot be used to reopen the summoning order. A BIFR restraint order under Section 22A of the Sick Industrial Companies Act is not an automatic bar to prosecution under Section 138; its effect must be assessed on its own terms and, where disputed, on evidence at trial. The complaints could not be quashed or stalled at the threshold, and the proceedings were restored for decision in accordance with law.

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Issues: (i) Whether, in complaints under Section 138 of the Negotiable Instruments Act, 1881, a Magistrate can recall summons and discharge the accused at the threshold; (ii) whether a restraint order issued by the Board for Industrial and Financial Reconstruction under Section 22A of the Sick Industrial Companies (Special Provisions) Act, 1985 bars prosecution under Section 138 of the Negotiable Instruments Act, 1881.

Issue (i): Whether, in complaints under Section 138 of the Negotiable Instruments Act, 1881, a Magistrate can recall summons and discharge the accused at the threshold.

Analysis: The governing principle is that trial courts do not possess an inherent power to recall summons in a complaint case under Section 138 of the Negotiable Instruments Act, 1881. A recall application cannot be used to short-circuit the criminal process, and the correctness of the summoning order is not to be re-opened in that manner. The revisional court, therefore, ought not to have set aside the summoning order by entertaining a recall-based challenge.

Conclusion: The recall of summons was not maintainable, and the interference by the revisional court was unsustainable.

Issue (ii): Whether a restraint order issued by the Board for Industrial and Financial Reconstruction under Section 22A of the Sick Industrial Companies (Special Provisions) Act, 1985 bars prosecution under Section 138 of the Negotiable Instruments Act, 1881.

Analysis: Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 does not create a legal bar to instituting or proceeding with a prosecution under Section 138 of the Negotiable Instruments Act, 1881. A Section 22A restraint order has to be examined on its own terms and in the facts of the case; it is not an automatic or absolute shield. Where the order itself permits use of current assets for day-to-day operations, whether the cheques were issued for such operations is a matter to be tested on evidence, and the issue should ordinarily be decided at the trial stage after the parties lead evidence. The presumption as to the date on a negotiable instrument also militates against treating the cheques as post-dated at the threshold without evidence.

Conclusion: The restraint order did not justify quashing or stalling the complaints at the threshold.

Final Conclusion: The impugned orders were set aside and the complaint proceedings were restored to the Magistrate for decision in accordance with law.

Ratio Decidendi: A complaint under Section 138 of the Negotiable Instruments Act, 1881 cannot be terminated at the threshold on the basis of a BIFR restraint order unless the effect of that order on the alleged default is established on evidence, and a Magistrate has no inherent power to recall summons in such proceedings.

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