2001 (3) TMI 1061

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...., the facts relevant for the disposal of this petition under Section 482 of the Code of Criminal Procedure, are that the respondent filed a complaint under section 138 of the Act against accused No.1 M/s Ganga Automobiles Limited and accused No.2 Ashwani Suri, a Director of the said Company. The complainant instead of mentioning the name of the petitioner or any other Director, as accused in the complaint mentioned at Sr. No.3 "other Directors M/S Ganga Automobiles Services Ltd., S-11, Green Park Extension, New Delhi". In the entire complaint neither the petitioner was named nor any allegation was made that he was also liable to be prosecuted by virtue of Section 142 of the Act. Vide impugned orders dated 13th February, 1998, the learned Me....

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....in the complaint in suggest that he was liable by virtue of Section 142 of the Act no process could be issued against him. Learned counsel has also assailed the way in which the summons were ordered to be issued to "other Directors" on furnishing of a list by the complainant. According to him, the impugned order reflects utter non-application of mind by the learned Trial Court. 4. Learned counsel for the respondent has not been able to defend the impugned order but has suggested that the petitioner should be held to be liable by virtue of sub clause (2) of Section 142 of the Act for the commission of the offence under Section 138 thereof. 5. The law is well settled that summoning an accused in a criminal case is not an empty formality....

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....he 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. 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." 6. In the present case the petitioner was not named even in the complaint and no averment was made to cover him under Section 142 of the Act. An order like the one dated 13.2.1998 issuing summons to "other Directors" may not be passed in ....