Saint-Gobain Diamant Winter Ltd. vs Jagdamba Marbles And Ors.
2007 Latest Caselaw 2328 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. This appeal has been preferred against the order of learned Metropolitan Magistrate dated 26th March, 2004 whereby the learned MM recalled its summoning order dated 16th July, 2001 asking the accused persons to face the trial under Section 138 of Negotiable Instruments Act (for short 'the Act'), on an application under Section 245, Cr. P.C moved by the accused persons. Section 245, Cr. P.C reads as under:

245. When accused shall be discharged.-(1) If, upon taking all the evidence referred to in Section 244 the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.

(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.

1.1. A bare reading of above two sections make it abundantly clear that Section 245 can be invoked only where the Magistrate had taken all evidence as is produced before it in support of prosecution and upon taking all evidence, no case was made out against the accused. Section 245 cannot be invoked without recording evidence as envisaged under Section 244. Strangely enough, the learned MM passed an order under Section 245, Cr. P.C without recording evidence as required under Section 244. The order is, therefore, not sustainable in the eyes of law. The learned MM could not have recalled the summoning order, even otherwise, in view of the judgment of the Supreme Court in , Adalat Prasad v. Rooplal Jindal.

2. The appeal is allowed and the order dated 26th March, 2004 passed by learned MM is hereby set aside. The learned MM is directed to proceed with the trial in accordance with law. Parties are directed to appear before learned Metropolitan Magistrate on 11th December, 2007