R.P.G. Transmission Ltd. vs Sakura Seimitsu (I) Ltd. And Ors.
2005 Latest Caselaw 414 Del

JUDGMENT

Manju Goel, J.

1. These revision petitions are directed against the order dated 18.11.2000 passed by Shri V.K.Goyal, M.M., New Delhi in complaint case Nos. 1114/98 & 1528/98 whereby he discharged the accused No. 2 (respondent No. 2 herein) in cases under Section 138 of the Negotiable Instrument Act. The orders were passed on applications of accused No. 2 for recalling the summoning order. The plea taken by respondent No. 2 was that before the impugned cheque was issued he had resigned from the directorship of the company accused in the petition and was, therefore, not liable to be prosecuted being not a person responsible for the affairs of the company at the relevant point of time. The learned Magistrate took into consideration Form 32 which was placed before him and observed that since Form 32 was not being disputed it was clear that respondent No. 2 had resigned from the company on 5.6.1998 whereas the cheques in both cases were dated 27.6.1998 & 27.9.1998 and, therefore, not liable to be prosecuted. The summoning order against respondent No. 2, Rajeev Gupta, was recalled and Rajiv Gupta was discharged in both cases. These orders are under challenge under the provisions of Sections 397/401 of the Code of Criminal Procedure (hereinafter referred to as the `Code').

2. On merit it has been argued by the learned counsel for the petitioner that the order of discharge could not have been passed by taking into account the document submitted by respondent No. 2 in view of the judgment in the case of State of Orissa v. Debendra Kumar Padhi , which says that evidence and documents produced by the accused cannot be seen at the stage of charge. The stage of charge is subsequent to summoning and appearance of the accused. If at the stage of charge such documents cannot be seen, it is obvious that the same cannot be seen at the stage of summoning. However, the challenge to the present petition by the respondents is more fundamental and requires to be decided first.

3. It is contended that the proceedings under Section 138 of the Negotiable Instrument Act was `summons trial' and procedure laid down in Chapter XX of the Code was applicable. This chapter does not contemplate an order of discharge as was available for Session's friable case under Section 227 of the Code or a warrant friable case under Section 239 of the Code. In this situation, an order of discharge has to be read as an order of acquittal under Section 255 of the Code. It is then submitted that against such an order of acquittal only an appeal will lie and, therefore, the revision is not maintainable.

4. I find myself in agreement with the submissions made by the learned counsel for the respondents. The procedure given in Chapter XX for trial of summons cases by the Magistrate starts with Section 251 which provides for substance of accusation to be stated as soon as the accused being summoned appears before the Magistrate. The Magistrate is also required to ask the accused whether he pleads guilty or has any defense to make. No formal charge is required to be framed. The proceedings in the complaint under Section 138 of the Negotiable Instrument Act commence with filing of a complaint and cognizance being taken under Section 190(1)(a) of the Code following examination of the complainant. Since it is a summons friable case the learned Metropolitan Magistrate issued the summons under Section 204 of the Code. On being produced before the Magistrate a notice under Section 251 is required to be given. There is no provision preceding Section 251 allowing the accused to make any submission after being summoned but before being questioned as provided under Section 251 of the Code. Thus, it looks that it is imperative for the Magistrate to immediately frame a notice under Section 251 without considering if the accused can be discharged as is permissible under Sections 227 or 239 of the Code.

5. Section 258 gives power to a Magistrate in a summons case to stop the proceedings at any stage. Such stoppage amounts to acquittal when the principal witnesses have been examined and amounts to discharge in any other case. However, this power is not available when the summons case is instituted upon complaint. Section 258 reads as under:

258. Power to stop proceedings in certain cases.- 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 witness 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.

6. Therefore, this provision of discharge is also not applicable to the present case. What has happened, therefore, is a discharge which is not provided for in the Code. Therefore, this order of discharge has to be read as an order of acquittal.

7. For such an order of acquittal will a revision lie?

8. Section 401(4) prescribes that when an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. The provision is extracted below:

"401. High Court's powers of revision.- .....

(4) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.

9. Section 378(4) endows the complainant to institute an appeal. Section 378(4) reads as under:

"378. Appeal in case of acquittal.- ....

(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

10. The provision quoted above shows that the complainant may present an appeal to the High Court. Section 401(5) of the Code permits a revision being treated as a petition of appeal. Section 401(5) provides that where an appeal lies but an application for revision has been made to the High Court and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.

11. In the present case, however, this court is unable to give the benefit of sub-Section (5) of Section 401 to the petitioner because appeal in this case is entertainable only after a special leave to appeal has been granted.

12. The petitioner has not filed any application for special leave to appeal. It may further be mentioned that the petition was filed on 23.2.2001 whereas the special leave to appeal was required to be filed within 60 days from the date of the acquittal which was 18.11.2000.

13. I am unable to entertain the revision petitions as the same is not maintainable. The same are accordingly dismissed.