The Allahabad High Court while dismissing an application held that discharge application under Section 258 Cr.P.C is also not maintainable as that section applies where summons are instituted otherwise than upon complaint, but proceeding under Section 138 N.I Act instituted on the basis of complaint.
A Single Bench of Justice Arun Kumar Singh Deshwal passed this order while hearing an application under section 482 filed by Jai Prakash Goyal.
The application under Section 482 Cr.P.C has been filed for quashing the order dated 16.12.2023 passed by Presiding Officer, Additional Court, Agra as well as entire proceeding of Complaint Case under Section 138 N.I Act, Police Station Hari Parwat, District Agra pending in the court of Additional Court, District Agra.
The facts giving rise to the case is that on issuance of summon order against the applicant under Section 138 N.I Act, the applicant filed an Application u/s 482 CrPC challenging the entire proceedings of Complaint Case. That case was disposed of by the Court vide order dated 18.02.2019 permitting the applicant to raise all the dispute regarding the complaint before the trial court.
Thereafter, the applicant filed a discharge application before the trial court on 05.03.2019. In that discharge application, the applicant has raised a number of issues including the issue of premature complaint as well as cheque in question was given as security, therefore no liability under Section 138 N.I Act is made out and also that complaint was filed by stranger, hence not maintainable.
The trial court vide order dated 16.12.2023 rejected the aforesaid discharge application vide order dated 16.01.2023 on the ground that discharge application is not maintainable as per judgement of the Apex Court in Adalat Prasad vs Rooplal Jindal and others; 2004 (7) SCC 338 wherein it is observed that the summoning order cannot be recalled by the court which had issued the same.
The contention of counsel for the applicant is that the order dated 16.12.2023 is bad in law; firstly because the court has not considered the issue raised in its discharge application. Secondly, the court has erroneously held that the discharge application is not maintainable after passing the summoning order.
Counsel for the applicant further submitted that as per proviso of Section 143 N.I Act, in the proceeding under Section 138 N.I Act, Section 262 to 265 Crpc will be followed and Section 262 Cr.P.C specifically mentioned that during summary trial of case, proceeding of summon case has to be followed and proceeding of summon case has been mentioned in Chapter 20 of Cr.P.C which cover Sections 251 to 259 and Section 259 specifically provides that the trial court may convert summons case into warrant case in appropriate case, therefore the provisions of the warrant case mentioned in Chapter 19 of Cr.P.C will also applicable in proceeding under N.I Act. Therefore, discharge application under Section 244 Cr.P.C. in the proceeding under Section 138 N.I Act is very well maintainable.
Per contra, AGA submitted that application for discharge is not applicable in the proceeding under N.I Act unless the court pass specific order converting from the proceeding of summon case to warrant case as required under Section 259 Cr.P.C and in the case, the court has not passed any order for converting for summary trial to warrant trial.
The Court observed that,
After considering the submissions of the counsel for the parties and perusal of record, it appears that in the case, the applicant has challenged the order dated 16.12.2023 by which discharge application of the applicant was rejected. Therefore, other contention, at this stage, cannot be looked into or consider unless discharge application itself is maintainable, even otherwise, the applicant has already challenged the impugned complaint proceeding in earlier application u/s 482 Cr.P.C, wherein court was not inclined to interfere in the impugned proceeding of complaint case.
From the above analysis as well as law laid down by the Apex Court, it is clear that unless proceeding of complaint case under Section 138 N.I Act specifically converted into summon case or into trial case then the provision of summon case or warrant case cannot be strictly applied in the proceeding under Section 138 N.I Act.
In the case, the Magistrate has not passed any order for converting the trial of impugned proceeding from summary trial into warrant case. Once it is established that provisions of warrant case are not applicable then the question of applicability under Section 245 Cr.P.C regarding discharge of accused does not arise.
In view of above, the Court does not have any good ground to quash the impugned order by which the discharge application of the applicant was rejected, on the ground of maintainability.
Accordingly, the Court dismissed the application.
The Court provided that in case, the applicant appears before the court below within 15 days from today and applies for bail, his bail application shall be considered and decided in view of law laid down by the Apex Court in the case of Satender Kumar Antil vs Central Bureau of Investigation and another, 2021 SCC Online SC 922.