Allahabad High Court
M/S R.R. Builders And Developers 14 Anil ... vs State Of U.P. And Another on 22 March, 2023
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 23.01.2023 Delivered on 22.03.2023 Court No. - 77 Case :- CRIMINAL REVISION No. - 2468 of 2022 Revisionist :- M/S R.R. Builders And Developers 14 Anil Estate Through Radhey Shyam Gupta And 4 Others Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Surendra Tiwari,Suresh Chandra Mishra Counsel for Opposite Party :- G.A.,Rahul Sahai,Satish Kumar Pandey Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the revisionists, learned counsel for the opposite party No.2 and learned A.G.A. for the State.
2. This criminal revision has been preferred against the order dated 27.05.2022, passed by the learned Presiding Officer, Additional Court, Mathura, in Criminal Summons Case No.105 of 2017, (Sohanlal Sharma vs. M/s. R.R. Builders and others), under Section 138 N.I. Act, police station Govind Nagar, District Mathura, whereby the application filed by the revisionists/accused persons under Section 245 Cr.P.C. for discharge has been rejected.
3. It has been argued by learned counsel for the revisionists that the impugned order is against facts and law and thus, liable to be set aside. In the complaint, there is no such allegation that alleged transaction has taken place between the revisionist's firm or its partner and the opposite party No.2 and thus, there was no debt or liability on the part of revisionists regarding the alleged payment to opposite party No.2 and therefore, there was no occasion for issuing the cheque in question for discharge of any liability. Further, no notice, as alleged by the opposite party No.2 in the complaint, was served upon the revisionists and in fact the notice was sent at wrong address. The opposite party No.2 did not get record his statement under Section 200 Cr.P.C. and instead of his statement, he has filed his affidavit and that similarly no witness was examined under Section 202 Cr.P.C. Referring to facts of the matter, it was submitted that no prima facie case is made out against revisionists and thus, the Trial Court committed error by rejecting discharge application of revisionists filed under Section 245 Cr.P.C. Learned counsel submitted that impugned order is suffering from manifest error of law and thus, impugned order is liable to be set aside.
4. Learned counsel for opposite party No.2 has raised preliminary objection and submitted that it was a summons case, which was being tried in accordance with Chapter XX of Criminal Procedure Code. In the procedure prescribed for summons cases under Chapter XX of Criminal Procedure Code, there is no provision of discharging the accused. Section 245 Cr.P.C. is applicable to the warrant trial cases and thus, the application of revisionists filed under Section 245 Cr.P.C. for discharge was not maintainable and hence, it was rightly rejected by the Trial Court. It was submitted that in view of aforesaid facts it cannot be said that the Trial Court committed any illegality or perversity while rejecting the application for discharge filed by the revisionists under section 245 Cr.P.C..
5. I have considered rival submissions and perused the record.
6. In the instant case it appears that revisionists were summoned for offence under Section 138 N.I. Act vide order dated 01.08.2013. During trial, the revisionists, moved an application under Section 245 Cr.P.C. seeking discharge, which was rejected by the Trial Court vide impugned order dated 27.05.2022.
7. In case of Bhushan Kumar & Anr. vs. State (N.C.T. of Delhi) and Anr. 2012 (2) Supreme 699, relied by learned counsel for the revisionists, it was observed by Hon'ble Apex Court 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. However, in the instant case the summoning order or the notice under Section 251 Cr.P.C. is not being challenged, rather, revisionists have filed an application under Section 245 Cr.P.C for discharge, which has been rejected by the impugned order.
8. In case of Harish Dahiya @ Harish and Anr. Vs. The State of Punjab and Ors. [2019 18 SCC 69], relied by the learned counsel for the revisionists, the matter relates to discharge for offence under section 306/34 IPC and that case law hardly addresses the issue involved in the instant matter.
9. In case of Urrshila Kerkar vs. Make My Trip (India) Private Ltd. [MANU/DE/4138/2013], which is also relied by the learned counsel for the revisionists, Hon'ble Delhi High Court has inter-alia held that the Trial Court is not expected to mechanically frame notice under Section 25 of Cr.P.C. and has to apply its mind to find out as to whether a prima facie case is made out or not and in the event of finding that no case is made out for proceeding against a particular accused, trial court would be well within its right to drop the proceedings qua such an accused. However, in the instant matter, as stated above, the notice under Section 251 Cr.P.C. is not being challenged and the issue is whether Section 245 Cr.P.C. is applicable to the summon trial cases, being tried in accordance with Chapter XX of Cr.P.C..
10. The perusal of record shows that the opposite party No. 2/complainant has filed complaint against the revisionists alleging that the revisionists have agreed to purchase two plots from the opposite party No. 2/complainant, against consideration of Rs. 45,00,000/- but later on they have dropped the idea of purchasing said plots and that in relation to the subsequent agreement between the parties, the revisionists have to pay an amount of Rs. 19 lakhs to the opposite party No. 2/complainant. Regarding that payment, the revisionists have given Rs.2,00000/- in cash and one cheque of Rs. 200,000/- was issued. Regarding remaining amount of Rs.15 lakhs, a cheque of Rs.15 lakhs of revisionist No. 1/ firm, which was signed by the revisionist No.2, was issued in favour of the opposite party No. 2/complainant. The said cheque was presented in bank but it was dishonoured due to ''stop payment'.
11. It appears that the Trial Court summoned the revisionists for offence under section 138 N. I. Act. During pendency of the case, the revisionists moved an application under section 245 CrPC for discharge, which has been rejected by the Trial Court vide impugned order dated 27.05.2022.
12. In view of the provisions of section 143 of N.I. Act and the quantum of punishment provided for the offence under section 138 N. I. Act, it is apparent that a case under section 138 N.I. Act has to be tried summarily. Chapter XX of Cr.P.C deals with trial of summons-cases by the Magistrate under Sections 251 to 259 Cr.P.C and it is relevant to note that no provision for discharge the accused is provided in that procedure. However, under Section 258 Cr.P.C, the power to stop proceedings in certain cases is provided but that is limited to summons-case instituted otherwise than upon complaint, that is, the cases mentioned in Section 190(1)(b) and (c) Cr.P.C, in which, cognizance is taken upon a police report or upon other information or own knowledge of the Magistrate. Hence, the power under Section 258 Cr.P.C can also not be invoked in the summons-case instituted on a complaint, where cognizance is taken under Section 190(1)(a) Cr.P.C. Thus, the proceedings under Section 138 of N. I. Act, being a summons-case, instituted on a complaint, cannot be stopped by invoking the jurisdiction under Section 258 Cr.P.C. In other words there is no provision providing for discharge of the accused in a summons-case instituted on the complaint and similarly there is no power to stop proceedings invoking the power under Section 258 of CrPC. Similar view has been taken by this Court in case of Smt. Vimla & Anr vs. State of UP & Anr (Case :- U/S 482/378/407 No. - 234 of 2008), decided on 09.02.2017.
13. The same view was expressed by the Madras High Court in case of G. Chandrasekaran V C.R. Umapathy [Criminal Revision case No. 1475 of 2003], decided on 27.09.2004, wherein the Court held as under :
''''The offence under Section 138 of Negotiable Instruments Act is punishable with imprisonment, which may extend to two years or with fine or with both and it is a summons-case. The petitions seeking for discharge of the accused were filed under Sections 245 and 203 Cr.P. C. Chapter XIX of Code of Criminal Procedure deals with trial of warrant-cases by Magistrates and Sections 238 to 243 Cr.P.C relate to cases instituted on a police report and Sections 244 to 247 Cr.P.C relate to cases instituted otherwise than on police report.
Section 245 Cr.P.C provides for discharge of the accused if no case against the accused has been made out upon taking all the evidence for prosecution in a warrant-case otherwise than on a police report. The said provision is not applicable to a case relating to an offence under Section 138 of Negotiable Instruments Act, since it is a summons case and the petitions for discharge, filed in the present cases, under Section 245 Cr.P.C are not maintainable''.
14. Thus, it is clear that a case under section 138 N.I. Act has to be tried summarily and in the procedure of summary trial, as provided in Chapter XX of Cr.P.C from Sections 251 to 259 Cr.P.C, no provision for discharge of the accused is provided. Similarly, the power, under Section 258 Cr.P.C, to stop proceedings, is also not available in such summons-case instituted on the complaint.
15. In view of the above stated legal position, the application filed by the revisionists under section 245 CrPC for discharge was not maintainable and thus, it was rightly rejected by the Trial Court. There is no material illegality or perversity or error of jurisdiction in the impugned order. Hence, being devoid of any merit, the revision is liable to be dismissed
16. Revision is dismissed.
Order Date :- 22.03.2023 Neeraj