Allahabad High Court
Sheikh Mohammad Kashef vs State Of U.P. Thru. Prin. Secy. Home Lko. ... on 5 April, 2025
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:19022
Court No. - 12
Case :- APPLICATION U/S 482 No. - 2836 of 2025
Applicant :- Sheikh Mohammad Kashef
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another
Counsel for Applicant :- Sheikh Wali Uz Zaman
Counsel for Opposite Party :- G.A.
Hon'ble Alok Mathur,J.
1. Heard Sri Sheikh Wali Uz Zaman, learned counsel for applicant as well as learned A.G.A. for the respondents.
2. By means of present application under Section 482 Cr.P.c. read with Section 528 of B.N.S.S. 2023, the applicant has challenged the validity of the order dated 27.08.2024 passed by Civil Judge (Sr. Div.), Fast Track Court, Unnao, in Complaint Case No. 242 of 2019 U/S 138 of Negotiable Instruments Act, 1881 thereby summoning the applicant.
3. It has been submitted by learned counsel for applicant that on a previous occasion also the applicant has filed an application under Section 482 of Cr.P.C. which was numbered as Application U/S 482 No. 8917 of 2019 which was disposed of by means of order dated 13.12.2019 granting liberty to the petitioner to file an application before the trial court concerned in conformity with the provisions of Cr.P.C. within 15 days which was to be considered and decided by the trial court expeditiously within next 45 days. It is in pursuance of the direction of this Court dated 13.12.2019 that the applicant had filed an application for discharge which has been rejected by means of impugned order dated 27.08.2024.
4. A perusal of the petition reveals that in the complaint made by respondent No. 2 which was alleged that the complaint had a share in a company known as M/S Shiv Silver shine Agro, UPSIDC and respondents were liable to pay the complainant an amount of Rs. 71,81,948.50/- which was paid to the complainant by means of Cheque No. 018301 drawn on Allahabad Bank. When the said cheque was presented to the bank, the same was dishonored due to insufficiency of funds and accordingly complaint was filed on which summoning order was issued on 05.03.2019.
5. The discharge application has been rejected by the trial court. In the discharge application, the petitioner has raised various allegations pertaining to incorrect address provided for by the complainant due to which notice could not be served and also questioned the territorial jurisdiction of the court to try the said application. The trial court has rejected the contentions stated at stage, only the statement of the complainant under Section 200 and 202 Cr.P.C. are to be looked into which prima facie discloses the offence made out against the petitioner and at this stage no fresh evidence can be considered at the behest of the accused to consider the application of discharge and accordingly rejected his application which has been assailed in the present case.
6. The respondents on the other had has raised a preliminary objection stating that the application of discharge itself was not maintainable and purportedly petitioner has sought to file a discharge under the direction of this Court but the perusal of the order of this Court date 13.12.2019 would indicate that no such direction was given by this Court for consideration of the application of discharge. Apart of the above, on merits, it has been stated submitted that impugned order has been passed in accordance with law and no interference deserves in this regard in the present case.
7. I have heard rival contentions as well as perused the record.
8. Considering the application for discharge which has been filed by the petitioner in pursuance of the directions of this Court dated 13.12.2019, it is noticed that this Court in unequivocally had granted liberty to the petitioner to file an application in conformity with the provisions of Cr.P.C. The petitioner could not indicate any provision under the provisions of Cr.P.C. where an application for discharge would be maintainable. Apart from the above, judgment of Hon'ble the Supreme Court in the case of In Re: Expeditious Trial of Cases under Section 138 N.I. Act, 1881, reported in 2021 SCC Online 325, has been placed before this Court.
9. With regard to jurisdiction of the trial court to entertain an application for discharge is relevant to consider paragraph Nos. 19 & 20 of the said Judgement.
"19. In Meters and Instruments (supra), this Court was of the opinion that 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. On that analogy, it was held that apart from compounding by the consent of the parties, the Trial Court has the jurisdiction to pass appropriate orders under Section 143 in exercise of its inherent power. Reliance was placed by this Court on Section 258 of the Code to empower the Trial Courts to pass suitable orders.
20. Section 143 of the Act mandates that the provisions of summary trial of the Code shall apply ?as far as may be? to trials of complaints under Section 138. Section 258 of the Code empowers the Magistrate to stop the proceedings at any stage for reasons to be recorded in writing and pronounce a judgment of acquittal in any summons case instituted otherwise than upon complaint. Section 258 of the Code is not applicable to a summons case instituted on a complaint. Therefore, Section 258 cannot come into play in respect of the complaints filed under Section 138 of the Act. The judgment of this Court in Meters and Instruments (supra) in so far as it conferred power on the Trial Court to discharge an accused is not good law. Support taken from the words ?as far as may be? in Section 143 of the Act is inappropriate. The words ?as far as may be? in Section 143 are used only in respect of applicability of Sections 262 to 265 of the Code and the summary procedure to be followed for trials under Chapter XVII. Conferring power on the court by reading certain words into provisions is impermissible. A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation12 . The Judge?s duty is to interpret and apply the law, not to change it to meet the Judge?s idea of what justice requires13. The court cannot add words to a statute or read words into it which are not there."
10.From a perusal of the aforesaid, it is clear that previously the Supreme Court was of the considered view that in the case of Meters and Instruments s Private Limited and Another v. Kanchan Mehta, (2018) 1 SCC 560 that under Section 143 of N.I. Act there is implied power granted to the Magistrate to discharge the accused but on reconsideration of the said case, it has been found that the law laid down by the Supreme Court in Meters and Instruments (Supra)is no longer good law and to that extent has been overruled while holding infirmity in the observations in the case of Meters and Instruments (Supra) the Supreme Court also observed that a judge must not rewrite a statute, neither to enlarge not to contract it. Accordingly in absence of any statutory provisions this Court does not find that such an application was maintainable.
11. Apart from the above, this Court finds that the summons have been issued to the petitioner on the basis of material on record. This Court also agrees with the findings recorded by the trial court and at this stage no fresh evidence can be adduced by the accused and accordingly this Court does not find any infirmity in the same.
12. For the reasons aforesaid, the writ petition is dismissed.
(Alok Mathur, J.)
Order Date :- 5.4.2025
Ravi/
