Published on: 15 July 2023 at 12:45 IST
Court: Supreme Court
Citation: CREF Finance Ltd. V. Shree Shanthi Homes (P) Ltd. (2005)
Honourable Supreme Court of India has held that Cognizance is taken of the offence and not of the offender, Thus the Court of Magistrate on perusal of the complaint must be satisfied that the complaint discloses the commission of an offence. It is held that Cognizance of Offence is not the same as Issuance of Process. Cognizance is taken at the initial stage when the Magistrate peruses the complaint with a view to ascertain whether the commission of any offence is disclosed. The issuance of process is at a later stage after considering the material placed before the court and when decides to proceed against the offenders.
11. Counsel for the respondents submitted that cognizance even if taken was improperly taken because the Magistrate had not applied his mind to the facts of the case. According to him, there was no case made out for issuance of process. He submitted that the debtor was the Company itself and Respondent 2 had issued the cheques on behalf of the Company. He had subsequently stopped payment of those cheques. He, therefore, submitted that the liability not being the personal liability of Respondent 2, he could not be prosecuted, and the Magistrate had erroneously issued process against him. We find no merit in the submission. At this stage, we do not wish to express any considered opinion on the argument advanced by him, but we are satisfied that so far as taking of cognizance is concerned, in the facts and circumstances of this case, it has been taken properly after application of mind.
The Magistrate issued process only after considering the material placed before him. We, therefore, find that the judgment and order of the High Court is unsustainable and must be set aside. This appeal is accordingly allowed and the impugned judgment and order of the High Court is set aside. The trial court will now proceed with the complaint in accordance with law from the stage at which the respondents took the matter to the High Court.
Drafted By Abhijit Mishra
