JUDGEMENT
Kailash Gambhir, J. -
(1.)By this petition filed under Sec. 397 Cr.P.C., the petitioner seeks to challenge the order dated 18 -1 -2011 passed by the learned Metropolitan Magistrate, Saket Court, New Delhi thereby dismissing the Complaint Case Bearing No. 80/1/2010 filed by the petitioner under Sec. 200 Cr.P.C. for taking cognizance against Respondent No. 2 for committing an offence punishable under Sec. 174 IPC. Arguing the present petition, the learned counsel for the petitioner submits that the learned Metropolitan Magistrate has failed to appreciate the fact that the petitioner has taken every possible step to summon Respondent No. 2 in the proceedings initiated by the petitioner under Sec. 14 of the Central Excise Act. Learned counsel for the petitioner further submits that in terms of the Sec. 14(2) of the Central Excise Act, 1944, a person who has been summoned by the Central Excise officer is bound to attend the proceedings, either in person or by an authorised agent. But in the present case, despite various summons sent to Respondent No. 2, he not only failed to appear himself but he also never cared to depute his authorized representative to represent him in the said proceedings. Learned counsel for the petitioner further submits that the learned Metropolitan Magistrate has committed another illegality by going into the defence of Respondent No. 2 at the stage of pre -summoning instead of believing the case of the petitioner on the pre -summoning evidence led by the petitioner to summon the accused in terms of the Sec. 174 IPC. Learned counsel for the petitioner submits that based on the documentary evidence placed on record by the petitioner, it is quite clear that absence of Respondent No. 2 in respect of the various summons sent by the petitioner was intentional and therefore, on a prima facie view of the aforesaid case filed by the petitioner and the documents placed on record, the learned Metropolitan Magistrate ought to have summoned Respondent No. 2. Learned counsel for the petitioner, in support of his contentions placed reliance on a judgment of this Court in the case of 'D. Dujari v/s. M.R. Chander, Enforcement Officer', : 2007 X AD (Delhi) 591.
(2.)On the other hand, the learned counsel appearing for Respondent No. 2 submits that the order passed by the learned Metropolitan Magistrate, is a reasoned order and that the learned Metropolitan Magistrate duly took into consideration the documentary evidence placed on record by the petitioner. Learned counsel for Respondent No. 2 also submits that the learned Metropolitan Magistrate, dismissed the said complaint case filed by the petitioner after taking the prima facie view of the matter based on the material placed on record by the petitioner and therefore, it cannot be said that the order passed by the learned Metropolitan Magistrate, is not a reasoned order. Learned counsel for Respondent No. 2 further submits that after the completion of the investigation, the adjudication of proceedings is in progress and Respondent No. 2 has been appearing before the adjudicating authority.
(3.)I have heard the learned counsel for the parties.
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