Asia Metal Corporation (Huf) vs State And Anr. [Along With Crl Rev P ...
2006 Latest Caselaw 976 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. These two revision petitions are directed against the common order dated 6.12.2001 whereby all the accused persons except the accused Yogesh Gupta have been ?discharged?. The accused persons were said to have committed the offences under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the Act?) read with Section 141 thereof.

2. The learned Counsel appearing for the respondent No. 2 (Sanjay Chaudhary) submits at the very outset that these revision petitions are not maintainable. He referred to the decision of a learned Single Judge of this Court in the case of R.P.G. Transmission Ltd. v. Sakura Seimitsu (I) Ltd. 2005 Crl.L.J. 2862. The learned Counsel for the respondents submitted that the proceedings under Section 138 of the Act were proceedings pertaining to a summons-case trial and had to be in terms of the procedure laid down in Chapter XX of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code). According to the learned Counsel for the respondents, this chapter did 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. According to him, in such a situation, an order of discharge has to be read as an order of acquittal under Section 255 of the Code. He, therefore, contended that against an order of acquittal only an appeal would lie and consequently, these revision petitions would not be maintainable. A similar contention was raised in the case of R.P.G. Transmission Ltd. (supra) where this Court observed as under :-

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 case 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 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 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.

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 to 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.

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.

3. On the strength of the aforesaid observations contained in the case of R.P.G. Transmission Ltd. (supra), the learned Counsel for the respondents submitted that the present revision petitions would not be maintainable inasmuch as the impugned order discharging all the accused other than Yogesh Gupta amounts to an order of acquittal and only an appeal would lie against it.

4. The learned Counsel for the petitioners submitted that the decision in the case of R.P.G. Transmission Ltd. (supra) supports him and it is only when provisions of Section 258 of the Code are construed that the decision appears to be against the petitioners insofar as the question of maintainability of these revision petitions is concerned. He further submitted that the view taken by the learned Single Judge of this Court in the case of R.P.G. Transmission Ltd. (supra) with respect to the interpretation given to Section 258 of the Code would not be applicable to the facts of the present case because the present case is a summons- case instituted upon a complaint and Section 258 deals with summons-cases instituted other than upon a complaint, in other words, it pertains to State cases. Therefore, the observations made with regard to Section 258 of the Code and the interpretation given to the provisions thereof would not have applicability insofar as the present case is concerned. He then referred to the decision of the Supreme Court in the case of Subramanium Sethuraman v. State of Maharashtra and Anr. 2005 Supreme Court Cases (Crl) 242. In paragraph 16 of the Supreme Court's decision, it is observed that 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.

5. I have considered the submissions made by the learned Counsel for the parties and find that in view of the Supreme Court's decision in the case of Subramanium Sethuraman (supra), there is no question of discharge under Chapter XX insofar as a summons-case which has been instituted upon a complaint is concerned. Chapter XX pertains to trial of summons-cases by Magistrates. Section 251 pertains to the substance of accusation to be stated. It provides that when in a summons-case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defense to make, but it shall not be necessary to frame a formal charge. Prior to the stage of Section 251 of the Code, the procedure that is prescribed is governed by Chapter XV of the Code starting from Section 200. Section 200 of the Code pertains to the examination of the complainant. Section 203 deals with the dismissal of complaint. In particular, it provides that if, after considering the submissions on Oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing. In a sense Section 203 marks the culmination of the pre-summoning stage. It either results in the dismissal of the complaint or it results in the advancement to the next stage, that is, Chapter XVI. Section 204 is the first section in Chapter XVI. Under Section 204 it is made clear that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding in a summons-case, he shall issue summons for the attendance of the accused. The issuance of summons for attendance marks the end of the pre-summoning stage and the case then has to be dealt with under Chapter XX which deals with trial of summons-cases by Magistrates. At this stage, the Magistrate is not required to further apply his mind as to whether the case has to be proceeded with or not against the accused/summoned persons. All that is required under Section 251 of the Code is that the substance of the accusation is to be stated and the accused is to be asked whether he pleads guilty or has any defense to make and it is also not necessary to frame a formal charge. None of the provisions of Chapter XX speak of any possibility of discharge except under Section 258 which does not apply to the present case. The Supreme Court's decision in the case of Subramanium Sethuraman (supra) is quite clear on this aspect and has categorically held that 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. What has happened in the present case is that after summons were issued, at the stage of proceedings under Section 251 of the Code, the learned Metropolitan Magistrate has discharged all the accused except Yogesh Gupta. There is no provision of discharge at the stage of Section 251 of the Code and therefore, this is clearly contrary to the provisions of the Code as also to the law as declared by the Supreme Court in the case of Subramanium Sethuraman (supra). This is an error which needs to be corrected and therefore, these revision petitions would be maintainable. The question of the discharge amounting to an acquittal is of no consequence because discharge itself is not permissible under the law. Therefore, the consideration of the interpretation of Section 258 as was done in the case of RPG Transmission (I) Ltd. (supra) is not at all necessary.

6. In view of the foregoing discussions, I hold that these revisions petitions are maintainable and that the learned Metropolitan Magistrate has committed a serious error which requires to be corrected. In this view of the matter, these revision petitions are allowed and the impugned order insofar it ?discharges? all the accused other than Yoges Gupta, is set aside .

7. The accused are directed to appear before the concerned Metropolitan Magistrate on 27.5.2006, the date already fixed in that matter for the remaining accused. I direct that the trial be conducted expeditiously keeping in view the newly amended Section 143 of the Negotiable Instruments Act, 1881. The same be concluded preferably within six months. These revision petitions stand disposed of.

LCR be sent back immediately.