Excelsior Correspondent
Srinagar, Nov 1: High Court has observed that a Magistrate while issuing process against the accused in a criminal case has to meticulously examine the record and quashed the order of trial court wherein process was issued in a cheque bounce case with the direction to hear the matter afresh.
Justice Sanjay Dhar has set aside the complaint as also the order dated 26.03.2021 passed by the court of Judge Small Causes Srinagar whereby cognizance of the offences was taken and process was issued against the petitioner-accused.
Justice Dhar recorded that a Magistrate while issuing process against an accused in a criminal case has to meticulously examine the record, go through the contents of the complaint and thereafter satisfy himself about the facts alleged in the complaint.
“After undertaking this exercise, the Magistrate has to be opined as to what offences are made out against the person sought to be summoned. It is to be noted that once a person is summoned in a criminal case, he is exposed to threat of arrest, unless he seeks bail from the concerned court”, court said.
Court said the order of issuance of process against an accused has to be passed by a Magistrate with due diligence and with full sense of responsibility. “The impugned order dated 26.03.2021, passed by the trial Magistrate clearly reflects non-application of mind on his part and, as such, is not sustainable in law”, court recorded.
The court concluded that the order of cognizance passed by the trial Magistrate, whereby process has been issued against the petitioner-accused, is set aside and remanded the case to the trial Court with a direction to pass a fresh order of cognizance on the basis of the material available before him after hearing the complainant/ respondent.
The complaint was filed by one Khushmeela against the petitioner-Tamanna before the trial Magistrate alleging therein that the petitioner-accused and her husband had approached her for a loan, for the purpose of setting up her business, as she was facing financial hardships and a total amount of Rs.62.00 lacs was advanced by the complainant-Tamanna to the petitioner-accused and for repayment of the said amount, the petitioner-accused issued seven cheques in favour of the complainant but all the seven cheques were returned unpaid by the bank for ‘insufficiency of funds’.
“I am afraid, the errors made by the trial Magistrate in recording the particulars of the cheques and the memos cannot be termed as typographical in nature. These errors are relating to essential aspects of the case and the same clearly reflects that the learned trial Magistrate, while passing the impugned order, has approached the case in a mechanical and negligent manner”, Justice Dhar said.
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