One of the most debated issues in the legal circle is the concept of discharge in a summons case. Despite availability of sufficient literature on the subject, confusion persists and the members of legal fraternity are unable to come to a definite single conclusion one way or the other. Presently, on a reference made by a Ld. Magistrate, Delhi High Court has taken suo moto cognizance of the issue but the matter is still pending for consideration. Present paper is humble attempt to throw some light on the peculiarity of issue and way forward atleast in the cheque bounce cases.
2. It all primarily started in the year 2004 when the Supreme Court constituted a larger bench (consisting three judges) to reconsider its earlier judgment pronounced in K.M. Mathew vs State of Kerala (1992) 1 SCC 217. The larger bench came up with a decision in the case titled as Adalat Prasad vs Rooplal Jindal reported in (2004) 7 SCC 338 wherein it observed “In none of these stages the Code has provided for hearing the summoned accused, for obvious reasons because this is only a preliminary stage and the stage of hearing of the accused would only arise at a subsequent stage provided for in the latter provision in the Code……. It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provision of Sections 200 & 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 of Code. Therefore, in our opinion the observation of this Court in the case of Mathew (supra) that for recalling an order of issuance of process erroneously, no specific provision of law is required would run counter to the Scheme of the Code which has not provided for review and prohibits interference at interlocutory stages. Therefore, we are of the opinion, that the view of this Court in Mathew's case (supra) that no specific provision is required for recalling an erroneous order, amounting to one without jurisdiction, does not lay down the correct law”.
3. Adalat Prasad case was apparently in respect of warrant trial offence and therefore subsequently, it was sought to be reconsidered but Supreme Court in Subramanium Sethuraman vs State Of Maharashtra (2004) 13 SCC 324 declined the request stating that the same did not create any difference. This judgment was also by a three judges bench. Particularly on the point of discharge, the bench observed “The case involving a summons case is covered by Chapter XX of the Code which does not contemplate a stage of discharge like Section 239 which provides for a discharge in a warrant case. Therefore, in our opinion the High Court was correct in coming to the conclusion once the plea of the accused is recorded under Section 252 of the Code the procedure contemplated under Chapter XX has to be followed which is to take the trial to its logical conclusion. As observed by us in Adalat Prasad's case the only remedy available to an aggrieved accused to challenge an order in an interlocutory stage is the extraordinary remedy under Section 482 of the Code and not by way of an application to recall the summons or to seek discharge which is not contemplated in the trial of a summons case”.
4. Sometimes, the decision in Subramanium (Supra) is tried to be distinguished saying that in that case when the application for discharge was filed, the Magistrate had already recorded the plea of accused and therefore there could not have been any occasion for discharge. True, this was the position in the said case. However, the Supreme Court based its reasoning the point that there is no stage of discharge like Section-239 pertaining to warrant case. It can therefore be said that this case is also an authority for no discharge stage in the summons case.
5. Recently, another three judges bench in the Supreme Court has made similar observation. The story started from the Rajasthan High Court which in Bhagwan Swaroop vs State Of Rajasthan dated 26.07.2018 ordered “Learned counsel for the petitioners has submitted that he shall not press the present petition and the same be dismissed as withdrawn with liberty to the petitioners to file an application for discharge before the court concerned at the time of consideration of charges. It is further prayed that personal appearance of petitioners No.3 to 5 who are ladies be dispensed with as seven members of the family have been named as accused. I find merit in the alternative prayer made by the learned counsel for the petitioners. Hence, present petition is dismissed as withdrawn with liberty to the petitioners to file an application for discharge before the court below at the time of consideration of charges. Needless to say that the application so filed shall be decided by the trial court after passing a detailed speaking order”.
6. The aforesaid order was challenged before the Supreme Court in Vishal Tiwari vs State Of Rajasthan and was disposed of by a three judges bench vide order dated 21.01.2020. Supreme Court made observation “Heard learned counsel for the parties. The High Court has by the impugned judgment ordered that the petitioners before it shall file an application for discharge, which shall be considered by the trial Court at the time of framing of charge. Further, personal appearance of the petitioner Nos. 3 to 5 has been exempted on the terms set out. It is obvious that the High Court lost sight of the fact that the stage of framing of charge will not arrive in a summons case, which the present case undisputedly is”.
7. It is clear that three judgments of Supreme Court are available and all have been pronounced by three judges benches in Adalat Prasad, Subramanium Sethuraman and Vishal Tiwari indicating that discharge is not possible in a summons triable case.
8. However, in the year 2012, a judgment of Supreme Court in Bhushan Kumar v. State (NCT of Delhi), (2012) 5 SCC 424 was pronounced and a superficial reading of the same again created confusion. This is generally cited to support the proposition that Magistrate has power to discharge an accused even in a summons case. In that case the Supreme Court observed “It is inherent in Section 251 of the Code 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 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."
8.1. We are therefore required to see if this judgment pronounced in Bhushan Kumar can be treated as a precedent for the proposition in issue.
8.2. Firstly, the judgment was rendered by a two judges bench and therefore, the same cannot override the larger bench judgments in Adalat Prasad and Subramanium Sethuraman. Some fertile minds generally try to say that in Adalat Prasad, the issue involved was only about recalling of summons and not the discharge. Even if this is assumed for the sake of arguments, we have seen that Subramanium Sethuraman underlying basis was the concept of discharge.
8.3. Secondly, the Bhushan Kumar had no concern with the summons trial as the offence involved therein was Section-420 IPC which is a warrant triable case. As such, Supreme Court would not have any occasion for deciding an issue of discharge in a summons triable case.
8.4. Thirdly, the Supreme Court has not said that Magistrate can discharge under Section-251 but it has used an expression “he is bound to discharge the accused as per Section 239 of the Code”. It is statutorily provided that Section-239 falls within Chapter-XIX whereas summons trial is conducted under Chapter-XX of CrPC. So there is no question of applying Section-239 in a summons case.
8.5. Fourthly, in Bhushan Kumar, accused had approached the High Court for quashing of summons and not against rejection of discharge plea. High Court having refused to quash the summons, accused came to the Supreme Court. In such circumstances, no issue was raised before the Supreme Court about discharge and therefore, it could not have commented upon whether Magistrate has power to discharge or not.
8.6. Fifthly, Supreme Court itself had framed specific issues in the case as “The questions which arise for consideration in these appeals are: (a) Whether taking cognizance of an offence by the Magistrate is same as summoning an accused to appear? (b) Whether the Magistrate, while considering the question of summoning an accused, is required to assign reasons for the same?”. It is clear that apart from these two issues, there was nothing else to be commented upon. In some initial paragraphs, the Supreme Court shown that taking cognizance of an offence by the Magistrate and summoning an accused to appear are two different things. It also clearly shown that no detailed reasons are required and in Paragraph-19 of the report, it observed “This being the settled legal position, the order passed by the Magistrate could not be faulted with only on the ground that the summoning order was not a reasoned order”. One would have thought that both the issues having been answered, the judgment would conclude. However, surprisingly, out of nowhere, in the next Paragraph-20, Section-251 came up. This paragraph having no connection with the case or the issues or even the discussions going on, cannot be taken as a precedent.
9. There is one more deviation which is required to be noted. Delhi High Court in Arvind Kejriwal & Ors vs Amit Sibal 2014 (1) JCC 229 came up with statutory direction tracing it to Sectio-482/483 of CrPC and Article 227 of the Constitution and empowered the Magistracy to discharge an accused even in a summons case. It said “In view of the authoritative pronouncements of the Supreme Court in Bhushan Kumar (supra), Krishna Kumar Variar (supra) and Maneka Gandhi (supra) and of this Court in Raujeev Taneja (supra), Urrshila Kerkar (supra) and S.K.Bhalla (supra), the accused are entitled to hearing before the learned Metropolitan Magistrate at the stage of framing of notice under Section 251 Cr.P.C in all summons cases arising out of complaints and the Magistrate has to frame the notice under Section 251 Cr.P.C. only upon satisfaction that a prima facie case is made out against the accused. However, in the event of the learned Magistrate not finding a prima facie case against the accused, the Magistrate shall discharge/drop the proceedings against the accused. Since there is no express provision or prohibition in this regard in the Code of Criminal Procedure, these directions are being issued in exercise of power under Section 482 read with Section 483 Cr.P.C. and Article 227 of the Constitution to secure the ends of justice; to avoid needless multiplicity of procedures, unnecessary delay in trial/protraction of proceedings; to keep the path of justice clear of obstructions and to give effect to the principles laid down by the Supreme Court in Bhushan Kumar (supra), Krishna Kumar Variar (supra) and Maneka Gandhi (supra)”.
10. This judgment was challenged before the Supreme Court and it was eventually set aside in the case tilted as Amit Sibal vs Arvind Kejriwal 2016 (12) SCALE 487 wherein it observed “The appellant has challenged the aforesaid directions in these proceedings on the ground that in a complaint case where summoning order has been issued and no charge is to be framed and, the order permitting the respondents to raise such contentions at the stage of framing of notice and directing the Metropolitan Magistrate to consider the same and pass appropriate order is contrary to law. The substance in this contention raised by the learned counsel for the appellant to this legal position is not even rebutted by the respondents……………. The appeal is, accordingly, allowed setting aside the impugned order and the matter is remitted to the High Court for its decision”.
11. It is sometimes emphasized that Supreme Court in Arvind Kejriwal case did not say that discharge is not possible in summons cases. The base for such an emphasis is that the Supreme Court remanded the matter. This is not only fallacious but touches the absurdity. Firstly, High Court had specially held that Magistrate has power to discharge and in appeal, this proposition was specifically challenged as can be seen from the aforesaid paragraph. Supreme Court observed “The substance in this contention raised by the learned counsel for the appellant to this legal position is not even rebutted by the respondents”. It is clear that challenge to the propostition was having substance to such an extent that opposite party was even unable to make a rebuttal. What more is required. Then the Supreme Court clearly set-aside the judgment of the High Court. Remand was because the High Court instead of deciding the petition itself, asked the Magistrate to consider for discharge in a summons case. This position having been not accepted, the only recourse available was to remand the case to the High Court for deciding the same on merits. It cannot therefore be said that Supreme Court has not said anything on the issue of discharge in the said case.
12. The next point to be considered is the concept of stoppage of proceedings. Section-258 CrPC deals with such a concept and provides that in a given situation, the court can stop the proceedings. It reads as “In any summons- case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge”.
13. The provision contained in Section-258 CrPC was specifically in issue before the Supreme Court in respect of complaint cases of summons triable nature. Supreme Court opined that this provision applies only to a case instituted upon police report but not to a complaint case. To be precise, the Supreme Court in John Thomas vs Dr. K. Jagadeesan AIR 2001 SC 2651 observed “Summons cases are generally of two categories. Those instituted upon complaints and those instituted otherwise than upon complaints. The latter category would include cases based on police reports. Section 258 of the Code is intended to cover those cases belonging to one category alone i.e. "summons cases instituted otherwise than upon complaints". The segment separated at the last part of the section by the words "and in any other case" is only a sub- category or division consisting of "summons cases instituted otherwise than upon complaints". That sub- category is not intended to cover all summons cases other than those instituted on police report. In fact, Section 258 vivisects only "summons cases instituted otherwise than on complaints" into two divisions. One division consists of cases in which no evidence of material witness was recorded. The section permits the court to acquit the accused prematurely only in those summons cases instituted otherwise than on complaints wherein the evidence of material witnesses was recorded. But the power of court to discharge an accused at midway stage is restricted to those cases instituted otherwise than on complaints wherein no material witness was examined at all. The upshot of the above is that Section 258 of the Code has no application to cases instituted upon complaints. The present is a case which was instituted on complaint. Hence the endeavour made by the accused to find help from Section 258 of the Code is of no avail”.
14. Clearly therefore, one cannot invoke Section-258 in a summons case instituted on a complaint. Cheque bounce cases, we know, are instituted only upon complaint. As such, if the entire CrPC is to apply as it is even to the cheque bounce cases, one will not be able to claim stoppage of proceedings. We know that in terms of Section-4 & 5 of CrPC, offences under any statute are to be dealt with in terms of the provisions of CrPC unless something otherwise is provided therein. The question is as to whether the Negotiable Instruments Act provides any procedure different than the CrPC.
15. It is at this stage that we are required to note Section-143 of NI Act which basically deals with the procedural part of cheque bounce case. To the relevant extent, Section-143(1) reads “Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials”.
16. It appears that overriding effect has been given to NI Act but some provisions of CrPC have been made applicable to the trial of cheque bounce cases. Those provisions are contained in Section-262-265 CrPC. These provisions deal with summary trial. Section-262 in turn says that even for summary trial, the procedure specified for summons case is to be followed. As such, we will again fall back on provisions contained in Chapter-XX including Section-251 & 258. However, Section-143 NI Act has used an expression “as far as may be, apply”. This is very significant. It means that Sections-262-265 are not to be fully applied. In such circumstances, the expression “as far as may be, apply” will give sufficient discretion to mould the provisions available in CrPC.
17. Similar exception has been subject matter of the decisions of Supreme Court. In Mahindra & Mahindra Ltd vs Union Of India AIR 1979 SC 798, a three judges bench was dealing with Monopolies & Restrictive Trade Practices Act, 1969 and observed “But this part then proceeds to add that the provisions of section 114 and Order XLVII rule 1 shall, as far as may, be applied to the proceedings in the application. Can this provision be read to mean that an application under section 13(2) can be maintained only on the grounds set out in section 114 and Order XLVII, rule 1? The answer must obviously be in the negative. The words "as far as may" occurring in this provision are very significant. They indicate that the provisions of section 114 and Order XLVII, rule 1 are to be invoked only to the extent they are applicable and if, in a given case. they are not applicable, they may be ignored but that does not mean that the power conferred under section 13(2) would not be exercisable in such a case. The reference to the provisions of section 114 and Order XLVII, rule 1 does not limit the grounds on which an application may be made under section 13(2). In fact, the respondents themselves conceded that the grounds set out in section 114 and Order XLVII, rule 1 were not the only grounds available in an application under section 13(2) and that the application could be maintained on other grounds such as material change in the relevant circumstances. It is, therefore, clear to our mind that even if a case does not fall within section 114 and Order XLVII, rule 1, the Commission would have power, in an appropriate case, to amend or revoke an order made by it. If, for example, a strong case is made out showing that an order made under section 37 is plainly erroneous in law or that some vital fact or feature which would tilt the decision the other way has escaped the attention of the Commission in making the order or that the appellant was prevented by sufficient cause from appearing at the hearing of the inquiry resulting in the order being passed exparte, the Commission would be entitled to interfere in the exercise of its power under section 13(2). These examples given by us are merely illustrative and they serve to show that Regulation 85 does not in any manner limit the power under section 13(2)”.
18. Similarly, Supreme Court in Dr. Partap Singh And Anr vs Director Of Enforcement AIR 1985 SC 989 was dealing with Foreign Exchange Regulation Act 1973 and observed “Sec. 37 (2) provides that 'the provisions of the Code relating to searches, shall so far as may be, apply to searches directed under Sec. 37 (1). Reading the two sections together it merely means that the methodology prescribed for carrying out the search provided in Sec. 165 has to be generally followed. The expression 'so far as may be' has always been construed to mean that those provisions may be generally followed to the extent possible. The submission that Sec, 165 (1) has been incorporated by pen and ink in Sec. 37 (2) has to be negatived in view of the positive language employed in the section that the provisions relating to searches shall so far as may be apply to searches under Sec. 37 (1). If Sec. 165 (1) was to be incorporated by pen and ink as sub-sec. (2) of Sec. 37, the legislative draftsmanship will leave no room for doubt by providing that the provisions of the Code of Criminal Procedure relating to searches shall apply to the searches directed or ordered under Sec. 37 (1) except that the power will be exercised by the Director of Enforcement or other officer exercising his power and he will be substituted in place y f the Magistrate. The provisions of sub-sec. (2) of Sec. 37 has not been cast in any such language. It merely provides that the search may he carried out according to the method prescribed in Sec. 165 (1). If the duty to record reasons which furnish grounds for entertaining a reasonable belief were to be recorded in advance, the same could have been incorporated in Sec. 37 (1), otherwise a simple one line section would have been sufficient that all searches as required for the purpose of this Act shall be carried out in the manner prescribed in Sec. 165 of the Code by the officer to be set out in the section. In order to give full meaning to the expression 'so far as may be', sub-sec. (2) of Sec. 37 should be interpreted to mean that broadly the procedure relating to search as enacted in Sec. 165 shall be followed. But if a deviation becomes necessary to carry out the purposes of the Act in which Sec. 37 (1) is incorporated, it would be permissible except that when challenged before a court of law, justification will have to be offered for the deviation. This view will give full play to the expression 'so far as may be'.”
19. We know that for interference in judicial administration, a court can lodge a complaint in a given case by virtue of Section-195/340 CrPC. However, the procedure for trial of such case is given in Section-343 CrPC. Interestingly; the provision contained therein says that such complaint case should be treated tried as if the same is instituted on a police report. However, it has also used an expression “as far as may be” in respect of such fiction. Taking a cue from this exception, the Supreme Court in State Of Goa vs Jose Maria Albert Vales 2017 (4) JCC 2245 opined that the same provided discretion to the Magistrate. Precisely, the Supreme Court observed “Noticeably, the expression “as far as may be” assuredly lends some elasticity, relaxing the otherwise rigour of the legislative mandate to deal with the complaint as a case instituted on a police report. It cannot be gainsaid that in absence of this discernible flexibility, the Magistrate would be left with no option but to construe the complaint under Section 340 or Section 341 to be a case as if instituted on a police report, Section 343(1) thus clearly marks an exception qua the procedure to be adopted by the Trial Magistrate if the complaint is filed under Section 340 or Section 341 of the Code………. On the other hand, if the complaint has been filed without a preliminary inquiry, in our estimate, having regard to the inbuilt flexibility in the text of Section 343(1), which cannot by any means be construed to be an unnecessary appendage or surplusage, introduced by the legislature, it would be open for the Trial Magistrate to hold a summary inquiry before proceeding further with the complaint. As in any case, the cause of justice would be paramount, the mandate in Section 343(1) to the Trial Magistrate to deal with a complaint under Section 340 or Section 341 Cr.P.C. as a case instituted on a police report, if construed to be inexorably absolute, would tantamount to neutering the expression “as far as may be”, which is impermissible when judged on the touchstone of fundamental principles of justice, equity and good conscience as well as of interpretation of statutes…… True it is that the text of Section 343(1) otherwise portrays a predominant legislative intent of treating the complaint under Section 340 and Section 341 to be a case, as if instituted on a police report, the presence and purport of the expression “as far as may be” by no means can be totally ignored”.
20. While dealing with Gujarat Town Planning and Urban Development Act, 1976, the Supreme Court in Bhavnagar University vs Palitana Sugar Mill Pvt. Ltd. AIR 2003 SC 511 observed “It is true that Section 21 of the Act imposes a statutory obligation on the part of the State and the appropriate authorities to revise the development plan and for the said purpose Sections 9 to 20 'so far as may be' would be applicable thereto, but thereby the rights of the owners in terms of sub-section (2) of Section 20 are not taken away. The question, however, is as to whether only because the provision of Section 20 has been referred to therein; would it mean that thereby the Legislature contemplated that the time of ten years specified by the Legislature for the purpose of acquisition of the land would get automatically extended? The answer to the said question must be rendered in the negative. Following the principle of interpretation that all words must be given its full effect, we must also give full effect to the words "so far as may be" applied to such revision. The said words indicate the intention of the Legislature to the effect that by providing revision of final development plan from time to time and at least once in ten years, only the procedure or preparation thereof as provided therein, is required to be followed. Such procedural requirements must be followed so far as it is reasonably possible. Section 21 of the Act, in our opinion, does not and cannot mean that the substantial right conferred upon the owner of the land or the person interested therein shall be taken away. It is not and cannot be the intention of the Legislature that what is given by one hand should be taken away by the other……. What is contemplated under Section 21 is to meet the changed situation and contingencies which might not have been contemplated while preparing the first final development plan. The power of the State enumerated under sub-section (1) of Section 20 does not become ipso facto applicable in the event of issuance of a revised plan as the said provision has been specifically mentioned therein so that the State may use the same power in a changed situation”.
21. The aforesaid four judgments clearly indicates that the expression “as far as may be, apply” gives sufficient latitude for molding the existing procedure as the entire section is not to be borrowed & read into the new provision. Rather, the procedure is to be applied to the extent possible. Authorities can be multiplied on this issue but the end result is the same that is no word of a provision can be neglected and that expression “as far as may be, apply” should be given its adequate meaning. As such, we can borrow the procedure of CrPC in Section-143 as far as may be possible and there is no need to read the entire procedure for the trial of cheque bounce cases. In such circumstances, we can borrow Section-258 for cheque bounce cases to the extent possible that is without its prohibition for complaint case.
22. It is not as if I am the first one to innovate such a view for cheque bounce cases. Faced with a roadblock allowing closure of cases by unilateral payment by accused as compounding otherwise is based upon mutual consent, Supreme Court in M/S Meters And Instruments vs Kanchan Mehta AIR 2017 SC 4594, came up with an ingenious solution that in such a situation, Section-258 CrPC can be made applicable to NI Act within the flexibility of the expression “as far as may be, apply” available in Section-143. Precisely, the Supreme Court observed “While it is true that in Subramanium Sethuraman versus State of Maharashtra this Court observed that once the plea of the accused is recorded under Section 252 of the Cr.P.C., the procedure contemplated under Chapter XX of the Cr.P.C. has to be followed to take the trial to its logical conclusion, the said judgment was rendered as per statutory provisions prior to 2002 amendment. The statutory scheme post 2002 amendment as considered in Mandvi Cooperative Bank and J.V. Baharuni (supra) has brought about a change in law and it needs to be recognised. After 2002 amendment, Section 143 of the Act confers implied power on the Magistrate to discharge the accused if the complainant is compensated to the satisfaction of the Court, where the accused tenders the cheque amount with interest and reasonable cost of litigation as assessed by the Court. Such an interpretation was consistent with the intention of legislature. The court has to balance the rights of the complainant and the accused and also to enhance access to justice……….. Appropriate order can be passed by the Court in exercise of its inherent power under Section 143 of the Act which is different from compounding by consent of parties. Thus, Section 258 Cr.P.C. which enables proceedings to be stopped in a summons case, even though strictly speaking is not applicable to complaint cases, since the provisions of the Cr.P.C. are applicable “so far as may be”, the principle of the said provision is applicable to a complaint case covered by Section 143 of the Act which contemplates applicability of summary trial provisions, as far as possible, i.e. with such deviation as may be necessary for speedy trial in the context…………….. Offence under Section 138 of the Act is primarily a civil wrong. Burden of proof is on accused in view presumption under Section 139 but the standard of such proof is “preponderance of probabilities”. The same has to be normally tried summarily as per provisions of summary trial under the Cr.P.C. but with such variation as may be appropriate to proceedings under Chapter XVII of the Act. Thus read, principle of Section 258 Cr.P.C. will apply and the Court can close the proceedings and discharge the accused on satisfaction that the cheque amount with assessed costs and interest is paid and if there is no reason to proceed with the punitive aspect……… In view of the above, we hold that where the cheque amount with interest and cost as assessed by the Court is paid by a specified date, the Court is entitled to close the proceedings in exercise of its powers under Section 143 of the Act read with Section 258 Cr.P.C”.
23. Now, someone might say that the judgment in Kanchan Mehta (supra) applies only where payment is made by the accused. A superficial reading may suggest so but if we go by the logic behind the same, we will find that irrespective of the payment, if the case otherwise requires stoppage of proceedings, the Magistrate has to do so. Supreme Court has utilized the expression “as far as may be, apply” available in Section-143 to borrow Section-258 CrPC even for summons triable cases instituted on complaint which is otherwise not so applicable. In such a given situation, it cannot be said that for one scenario, Section-258 will apply and for other scenario, the same shall not apply. If the expression “as far as may be, apply” gives latitude for borrowing Section-258, there cannot be any restriction on its usage when a peculiar situation of a given case so demands. Stoppage of proceeding is not a new concept for police cases and it generally happens in magisterial courts. No doubt, it does not apply to complaint cases but CrPC itself is not fully applicable to cheque bounce cases and therefore, an exception can be carved out even for summons cases instituted on complaint so far as NI Act is concerned. In Kanchan Mehta (supra) the Supreme Court has not said that once borrowed, Section-258 will stop applying for other situations apart from payment cases.
24. The discussion aforesaid shows that in normal summons cases instituted upon complaint, there cannot be any stage of framing charge as Section-251 does not contemplate so and as such, there arise no question for discharge of accused. Further, summons cases instituted upon complaint cannot be stopped as Section-258 has no application in general. However, peculiar to the Negotiable Instruments Act, concept of stoppage of proceedings can be borrowed in cheque bounce cases and in a given situation, the proceedings can be stopped resulting in discharge or acquittal as the case may be.
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