- (1.)The petitioners have challenged the summoning order dated 24th February, 2011 passed by the learned Metropolitan Magistrate in a complaint under Section 138 of the Negotiable Instruments Act.
(2.)Vide ex parte order dated 17th August, 2011, the notice of this petition was issued to the respondents and the proceedings before the learned Metropolitan Magistrate were stayed. The interim order is continuing till date and the proceedings before the learned Metropolitan Magistrate are stayed for last more than two years.
(3.)The brief relevant facts relating to this case are as under:-
(i) Respondent no.2 was supplied printing ink/adhesive to the petitioners in terms of the orders placed from time to time. The petitioners issued four cheques bearing Nos. 743797 dated 27th September 2010, 743780 dated 24th September, 2010, 744724 dated 28th September, 2010 and 743798 dated September 25th September, 2010 for Rs.10 lacs each drawn on Bank of Baroda, Faridabad to respondent no.2 in part discharge of the above liability.

(ii) Respondent no.2 presented the above mentioned four cheques to Bank of Baroda, Mayur Vihar, Phase-I. However, all four cheques were returned as unpaid for reason "account closed" whereupon respondent no.2 issued a legal notice dated 25th October, 2010 to the petitioners.

(iii) On 10th December, 2010, respondent no.2 instituted a complaint under Section 138 of the Negotiable Instruments Act before the learned Chief Metropolitan Magistrate, Karkardooma Courts relating to dishonour of aforesaid four cheques for Rs.10 lacs each.

(iv) The learned Metropolitan Magistrate took on record the pre-summoning evidence of the complainant by way of affidavit on 24th February, 2011. Mr. B.K. Gupta, power of attorney holder of respondent no.2 deposed in the evidence by way of affidavit that the petitioner handed over four cheques, Exs.PW-1/1 to PW-1/4 for Rs.10 lacs each to respondent no.2 in part discharge of legal liability of supply of goods vis-a-vis print ink/adhesive to respondent no.2 and all the said four cheques were dishonoured upon presentation for the reason "account closed" by return memos Exs.PW-1/5 to PW-1/11. Respondent no.2 proved a legal notice dated 25th October, 2010 as Ex.PW-1/12. The postal receipts were proved as Exs.PW-1/13 and PW-1/14. The acknowledgement card was proved as Ex.PW-1/15 and the refusal report of petitioner no.2 was proved as Ex.PW-1/16.

(v) The learned Metropolitan Magistrate issued the summons to the petitioners after examining the pre-summoning evidence and satisfying itself that prima facie offence has been made out against the petitioners. The summoning order dated 24th February, 2011 is reproduced hereunder:

"Pre summoning evidence tendered by way of affidavit. Complainant has also filed affidavit stating that no other complaint is pending between the parties in any other court in respect of the same transaction. Additional affidavit by way of evidence filed on behalf of complainant. Same be taken on record. No other complainant witness is present. Pre summoning evidence closed. Arguments on summoning heard.

I have gone through the record carefully. There are allegations in the complaint that accused has issued cheque to the complainant to discharge his liability. On its presentation, the same had been dishonoured. Thereafter, demand notice has been served upon the accused through registered AD/courier. Despite service of notice, accused has failed to make the payment as per provisions of Negotiable Instruments Act. Complaint is within limitation period. In my considered opinion, prima facie there is sufficient material available on record to summon the accused. Hence, accused be summoned for offence under Section 138 of Negotiable Instruments Act on filing of PF, speed post/authorized courier returnable on 23.07.2011. At request, dasti be given."