TMI Blog2020 (8) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... stated to be the very basis of filing the complaint, was not filed, but the other supporting documents mentioned in the complaint were also not placed on record. This non application of mind continued when, again in absence of the above referred documents, ld. ACMM framing the notice under S. 251 Cr.P.C. against the petitioners. The respondent was well aware of the objections raised in the earlier petition but still remained in a state of inertia and did not bring on record the requisite documents for 9 years despite being in possession of those document for all these years. It is not a case of inadvertence but rather sheer continued negligence which has caused serious failure and prejudice to the petitioners - The application of mind at the time of taking cognizance and framing of notice is sine qua non. In the opinion of this Court, the impugned order of framing of notice and the earlier order of summoning were passed mechanically in a perfunctory manner without any application of judicial mind either to the facts or to the records of the case. Accordingly, in the facts and circumstances of the case, the petition deserves to be allowed on this ground only and the other grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raming of notice against the petitioners, show complete nonapplication of mind as the aforesaid order was passed only on the basis of a bare complaint without any supporting documents despite the fact that in the complaint reliance was placed on five documents but none of them were annexed with the complaint; that initially summoning order was also passed without any application of mind and the same was passed on a pre-typed proforma order wherein certain blanks have been filled; that the complaint is lacking in detail as to the period for which the Wholetime secretary was not available in the accused company and lastly that there is no provision in Cr.P.C. to file any additional documents after framing of notice and thus the trial court, by permitting the respondent to place on record additional documents after one year of framing of notice, committed a grave illegality. It was urged that the respondent could not be allowed to fill the lacuna at the post-charge stage. In support, he has relied on the decisions in Bhushan Kumar v. State reported as (2012) 5 SCC 424; Anand Srivastava v. State and Ors. reported as (2008) 1 JCC 407 and Yahoo! India Pvt. Ltd. v. State Anr. reported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the petitioners vide order 14.11.2008. In other words, even on the date of framing of notice, no documents were available on the trial court record. 8. Much later, an application came to be filed on 23.04.2009 by the respondent to place the documents on record, which was allowed by the trial court on 12.03.2010. 9. So far as the issue raised in the respondent s written submission about non-maintainability is concerned, I deem it apposite to refer to the following observations of the Supreme Court in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Mohan Singh reported as (1975) 3 SCC 706 which have been recently reaffirmed in Anil Khadkiwala v. State (Government of NCT of Delhi) Anr. reported as 2019 SCC OnLine SC 941: 2. The main question debated before us was whether the High Court had jurisdiction to make the Order, dated 7th April, 1970 quashing the proceeding against Respondents Nos. 1, 2 and 3 when on an earlier application made by the 1st respondent, the High Court had by its Order dated 12th December, 1968 refused to quash the proceeding. Mr. Chatterjee on behalf of the State strenuously contended that the High Court was not com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors. reported as (1998) 5 SCC 749 , it was held as under: - 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 sufficient 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 251 of the Code that when an accused appears before the trial Court pursuant to summons issued under Section 204 of the Code in a summons trial case, it is the bounden duty of the trial Court to carefully go through the allegations made in the charge sheet or complaint and consider the evidence to come to a conclusion whether or not, commission of any offence is disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of the accusation to the accused and ask him whether he pleads guilty otherwise, he is bound to discharge the accused as per Section 239 of the Code. (emphasis added) 15. At this stage, I deem it apposite to refer to another decision which came to be passed between the present parties under exactly similar circumstances by a Co-ordinate bench of this Court in the case of Anand Srivastava (Supra). The decision squarely covers the issue of nonapplication of mind that has arisen in this case. In the captioned case also, a criminal complaint was filed by the Registrar of Companies against Anand Srivastava (petitioner no.2 herein), who is the Managing Director of the M/s Intercorp Industries Ltd. (petitioner no.1 herein) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on application of mind continued when, again in absence of the above referred documents, ld. ACMM framing the notice under S. 251 Cr.P.C. against the petitioners. The respondent was well aware of the objections raised in the earlier petition but still remained in a state of inertia and did not bring on record the requisite documents for 9 years despite being in possession of those document for all these years. It is not a case of inadvertence but rather sheer continued negligence which has caused serious failure and prejudice to the petitioenrs. It is also worthwhile to mention here that in the present case also, the summoning order was passed on a pre- formatted cyclostyled proforma order where certain blanks regarding name of the petitioners, offending section and next date of hearing, were filled in hand. 20. The application of mind at the time of taking cognizance and framing of notice is sine qua non. As emphasized in Mehmood Ul Rehman (Supra), the application of mind is best disclosed by disclosure of mind. In the opinion of this Court, the impugned order of framing of notice and the earlier order of summoning were passed mechanically in a perfunctory manner without any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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