Madhya Pradesh High Court
Vishnu Avtar Singh Chouhan vs New Agrawal Steel Agency on 24 March, 2021
Author: Akhil Kumar Srivastava
1
Cr. Revision nos. 5138/2018, 5137/2018 and 5130/2018
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
SINGLE BENCH : HON'BLE SHRI JUSTICE AKHIL KUMAR
SRIVASTAVA
Criminal Revision Nos. 5138/2018, 5137/2018 and 5130/2018
Vishnu Avtar Singh Chouhan
Vs.
New Agrawal Steel Agency
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Shri H.S. Ruprah with Shri P.K. Shukla, learned counsel for
the applicants.
Shri Umesh Trivedi, learned counsel for the respondent.
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Whether approved for reporting? Yes/No
Law laid down
Significant paragraph Nos.
ORDER
(Passed on 24/03/2021)
As these revisions involve an identical issue, therefore, they are
heard and decided finally by this common order.
These revisions have been filed under Section 397/401 of the
Cr.P.C. against the order dated 27.04.2018 passed in complaint case
no. 243/2016 passed by Judicial Magistrate First Class Itarsi District
Hoshangabad whereby the trial court dismissed the application under
section 245 of Cr.P.C.
2. The necessary facts leading to the filing of these revisions are
that the respondent filed the complaint case before the Judicial
Magistrate First Class Itarsi District Hoshangabad on the ground that
on 28.3.2009 the applicant issued a cheque for a sum of Rs. Twenty
lac to the respondent and when the same was produced for
withdrawal, same was bounced, therefore the respondent instituted a
complaint case against the applicant under the provision of 138 of
Negotiable Instrument Act vide criminal case no. 449/2010, later on a
compromise took place between the applicant and respondent on
02.08.2010 and on the basis of compromise the applicant paid a sum
of Rs. Ten lac in cash and for remaining amount of Rs. Ten lac, issued
five cheques in favour of the respondent with an amount of Rs. Two
lac each, thereafter cheques vide 908548 dated dated 30.12.2010,
908550 dated 30.10.2010 and 908546 dated 30.09.2010 have been
bounced, thereafter he again filed complaint case Nos. 242/2016,
243/2016 and 244/2016 under section 138 of the Negotiable
Instrument Act before the Judicial Magistrate First Class, Itarsi
District Hoshangabad which is pending for adjudication.
2. Being aggrieved by the registration of complaint, the applicant
filed petition under section 482 of the Cr.P.C. before this court vide
M.Cr.C. Nos. 10277/2012, 10282/2012 and 10289/2012 and the same
have been dismissed as withdrawn with liberty to agitate all the
points before the trial court and also placed reliance on the decision
of the Supreme Court rendered in the case of Lalit Kumar Sharma
and another Vs. State of U.P. and another (2008) 5 SCC 638 to
emphasize his submission as to how and in what manner the same is
applicable in the present case.
3. The learned counsel for the applicant submits that in
compliance of the direction of this court, he has filed an application
under section 245 of the Cr.P.C. on the ground that a compromise
having been taken place between the parties, the applicant was
discharged from all offences, therefore, no case is made out against
Cr. Revision nos. 5138/2018, 5137/2018 and 5130/2018
him under the provisions of section 138 of the Negotiable Instrument
Act as per the provision of section 245 of the Cr.P.C. but the trial
court has dismissed the application.
4. It is stated by the learned counsel for the respondent that
Cheque no. 908545 for a sum of Rs. 2 lac dated 30.11.2020 issued by
the petitioner in favour of the respondent was dishonoured for want
of insufficient funds and in this regard he intimated the petitioner
through his counsel to pay the amount in question within 15 days
from the receipt of notice and get a receipt thereof but the petitioner
refused to accept the notice and he did not bother to reply the same.
With this submission he supports the impugned order. They also
placed reliance on the judgment of the Supreme Court passed in the
case of Arun Mishra Vs. Anita Mishra and others AIR 2019 SC
5745 in which the Apex Court after considering the case of Lalit
Kumar distinguished the same. He further submitted that this court
has not given any direction to withdraw the miscellaneous criminal
cases filed under section 482 of the Cr.P.C. or to file application
under section 245 of the Cr.P.C. instead, the petitioner/accused
himself sought permission to withdraw the miscellaneous criminal
cases filed under section 482 of the Cr.P.C. with liberty to raise all
grounds before the trial court.
5. Heard the learned counsel for the parties.
6. Considering the rival contention of the learned counsel for the
parties, so far as application of section 245 of the Cr.P.C. in this
matter is concerned, the legal position can be found in the case of
Girraj Patwa Vs. Dayaram ILR (2008) M.P. 3355 of this court in
which considering the question of applicability of sections 239, 245
and 258 of Cr.P.C. in complaint case under sections 138 of the
Negotiable Instrument Act this court has held as under:-
"9. A mere reading of Criminal
Procedure Code indicates that the provisions of
this section are application for the trial of warrant
cases by Magistrates. Undisputedly, the criminal
cases registered against the respondent is
summon case and therefore the provisions of
section 239 Cr.P.C. do not attract in the present
case pending against the respondents, It is also
clear from the perusal of section 258 Cr.P.C. that
though the provisions of section 258 Cr.P.C. are
applicable in summons cases but only in those
summons cases which are instituted otherwise
than upon complaints. Undoubtedly, the present
criminal case has been instituted upon complaint
filed by the petitioner. It is, therefore, abundantly
clear that the provisions of these two sections do
not apply in the present criminal case and
therefore, the learned Magistrate has committed
error in allowing the application filed by the
respondent under section 245 of Cr.P.C.",
7. Similarly, the Apex Court in the case of Subramanium
Sethuraman Vs. State of Maharashtra and another 2005 (1)
M.P.L.J. 260 in paragraph 16 of its judgment has held as under:-
"The next challenge of the learned
counsel for the appellant made to the finding of
the High Court that once a plea is recorded in a
summons case it is not open to the accused
person to seek a discharge cannot also be
accepted. The case involving a summons case
Cr. Revision nos. 5138/2018, 5137/2018 and 5130/2018
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."
8. So far as the case of Lalit Kumar (supra) relied upon by the
learned counsel for the petitioner/accused is concerned, the same
distinguishable on the fact and ratio decided by the Apex Court in
the case of Arun Mishra (supra).
9. Considering the above legal propositions, the application filed
by the petitioner/accused under section 245 of the Cr.P.C. is not
maintainable. The courts below have not committed any error or
perversity in rejecting the application of the petitioner/accused filed
under section 245 of the Cr.P.C. Accordingly, no interference is called
for in the orders passed by the courts below and the revision petitions
are hereby dismissed. Consequently, the interim order passed by this
court on 10.03.2021 is hereby vacated and the trial court would be at
liberty to pass the final order.
(Akhil Kumar Srivastava)
Judge
msp
Digitally signed by MANVENDRA SINGH
PARIHAR
Date: 2021.03.25 12:32:43 +05'30'
