Court No. - 44
Case :- CRIMINAL REVISION No. - 2609 of 2018 Revisionist :- Ayaz Ali Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Nisar Uddin,Farooq Ahmad Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Nisar Uddin Farooq Ahmad, learned counsel for the revisionist and learned A.G.A. for the State.
This criminal revision has been filed challenging the order dated 10th July, 2018 passed by the Special Judge, N.I. Act-I, Allahabad in Complaint Case No. 65469 of 2013 (Abhishek Singh @ Chanchal vs. Ayaz Ali), under Section 138 Negotiable Instruments Act, Police Station Civil Lines, District Allahabad, whereby the discharge application filed by the revisionist in terms of Section 227 Cr.P.C. has been rejected.
From the record, it appears that the revisionist is alleged to have issued certain cheques in favour of the opposite party no.2, details of which, have been mentioned in paragraph nos.-5 and 6 of the complaint, which is on the record as Annexure-1 to the present criminal revision. Upon presentation, the cheques were not encashed and were returned with different return memos on the ground that the funds are insufficient. Consequently, as per the mandate of Section 138 (b) of the Negotiable Instruments Act (hereinafter referred to as the "N.I.Act"), the opposite party no.2 sent a notice dated 26th February, 2013 to the revisionist asking him to pay the amount payable under the disputed cheques. However, inspite of the aforesaid notice being sent by the opposite party no.2 to the revisionist, the amount payable under the disputed cheques was not paid. Consequently, the opposite party no.2 filed complaint dated 23rd May, 2013, which was registered as Complaint Case No. 469 of 2013 (Abhishek Singh Chanchal vs. Ayaz Ali) in the Court of Additional Chief Judicial Magistrate, Court No.10, Allahabad. The case was transferred to the court of the Additional Chief Judicial Magistrate, Court No.7, Allahabad and came to be registered as Complaint Case No. 655 of 2013 (Abhishek Singh Chanchal vs. Ayaz Ali) under Section 138 N.I. Act, Police Station Cantt., District Allahabad. Upon consideration of the material on the record, the concerned court summoned the revisionist by means of the summoning order dated 2nd September, 2013.
At this stage the case was again transferred and now to the court of Additional Chief Judicial Magistrate, Court No.10, Allahabad. It now came to be registered as Complaint Case No. 2919 of 2016 (Abhishek Singh Chanchal vs. Ayaz Ali), under Section 138 N.I.Act, Police Station Civil Lines, Allahabad. The revisionist appeared and filed his objections dated 19th August, 2017.
Subsequently, the revisionist filed a discharge application dated 21st June, 2018 purported to be under Section 227 Cr.P.C. in the court of Special Judge, N.I.Act, Allahabad. This discharge application filed by the revisionist has been rejected by the court below by means of the impugned order dated 10th July, 2018. Feeling aggrieved by the aforesaid order, the revisionist has now come before this Court by means of the present criminal revision.
Though the discharge application was filed under Section 227 Cr.P.C. but the said provision is not applicable in the case of a complaint case. Section 227 Cr.P.C. is applicable only in respect of a summon trial pending before the Magistrate. A case under Section 138 N.I. Act is treated as a complaint case and tried as a summary trial case. As such, the provisions of Section 245 Cr.P.C. shall be applicable.
The Magistrate, however, has rightly not gone into this technicality, as wrong quotation of section does not out the jurisdiction, if otherwise, the court has jurisdiction and has considered the merits of the application. Upon consideration of the material on the record, the Magistrate came to the conclusion that the allegations made in the discharge application are factual in nature and cannot be decided at the time of consideration of the discharge application. The same shall be subject to evidence, which may be adduced by the parties. However, one another important finding was recorded by the Magistrate was that the matter has been expedited by the High Court and the case has been pending since 2013. Therefore, the discharge application has been filed by the revisionist only to delay the proceedings of the case.
There is no explanation in the entire affidavit filed in support of the present criminal revision regarding the aforesaid finding recorded by the Magistrate.
Section 245 Cr.P.C., which is applicable to the case in hand is quoted herein below for ready reference:
"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."
Discharge under Section 245 Cr.P.C. can be claimed at two stages. Firstly when the entire prosecution evidence has been recorded and on the basis of unrebutted prosecution evidence, no conviction was possible. Secondly at the pre-trial stage, when the charge alleged against the applicant is found to be groundless. The court below has concluded though not in categorical terms that the charge alleged against the applicant cannot be termed as groundless, The issue as to whether the cheque book pertaining to the bank account of the revisionist was fraudulently got issued by another person, is a disputed defence of the revisionist, which cannot be gone into in the exercise of revisional jurisdiction by this Court under Section 397 Cr.P.C.
Consequently, there is no good ground to interfere in the present criminal revision, as the court below has not committed any jurisdictional error in passing the impugned order dated 10th July, 2018.
The present criminal revision fails and is, accordingly, dismissed.
(Rajeev Misra, J.) Order Date :- 21.8.2018 Sushil/-