TaxTMI 
TaxTMI 
2022 (4) TMI 764
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.... No. 2, (herein after called as OP-2), the petitioner herein Abhijit Kavade, manager of HDFC Bank along with two other persons have been arrayed in complaint case No.C-16913/2011 before learned Chief Metropolitan Magistrate, Calcutta to answer the allegation revealed under sections 406/409/120B of the Indian Penal Code. The petitioner herein who has been described as accused No. 3, on the basis of summon issued against him, approached this court to quash the proceeding on some grounds. 2. The allegations levelled in the said complaint is that complainant/OP-2 placed an order for supply of paper mills equipments for modification of paper machine with accused No. 1 namely R.D. Desai, proprietor of D.S. Engineer on 30th September, 2009 for ....
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....e, Calcutta vide order dated 29.06.2011 was pleased to transfer the same to the court of the learned Metropolitan Magistrate , 14th Court, Calcutta for disposal. Subsequently the Metropolitan Magistrate 14th Court, Calcutta, vide his impugned order dated 27.07.2011, after taking cognizance, issued summon upon petitioner herein and other two accused persons. 5. Learned Counsel appearing on behalf of the petitioner submits that subsequent to receiving the copy of claim letter sent by OP-2 for the said guarantee money the petitioner/bank authority issued a letter dated 01.12.2011, requesting the accused No.1 to make arrangement of fund. He further submits that subsequent to receiving the claim letter and preparing the demand draft in favour....
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.... aspect of the merit cannot be gone into. It appears that pursuant to the complaint petition filed by OP-2 herein, the Metropolitan Magistrate 14th Court, Calcutta by his order dated 27.07.2011 noted the following order :- " On behalf of the complainant affidavit and some document are filed. Perused the petition of complainant, affidavit and document. Hd. Ld. Advocate for the complainant , considered. A prima facie case u/s-138 of N.I. Act appears to exist. Issue summons to the accused fixing 1.12.11 for S/R & appearance. Complainant is to file requisite. Documents are returned to the complainant after perusal." 8. I am anguished to note that the entire order which forms the very basis of issuing summon upon th....
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.... of taking cognizance by the magistrate due to sheer negligence and insensitive and cruel disregard shown by a judicial magistrate. 9. It is by now well-settled that although the word "cognizance" has not been described in the Code of Criminal Procedure but under section 190 of the Code of Criminal Procedure, cognizance of offence by magistrate said to have taken when the magistrate takes notice of the acquisition and applies his mind to the allegations made in the complaint and on being satisfied that the allegations, if proved would constitute an offence, only then he decides to initiate the judicial proceeding against the offender by issuing summon. "Taking cognizance of an offence" is not a mere formality. Before taking cognizance ma....