1. The petitioner – original complainant has filed this Revision Application, under Section 397 read with Section 401 of the Code of Criminal Procedure, challenging the order dated 13.8.2002, below Application Exh.7, passed by the learned Judicial Magistrate, First Class, Maliya-Miyana, whereby the learned Magistrate has allowed the discharge Application (Exh.7) and has acquitted the respondent No.1 – original accused from the offence under Section Section 138 of the Negotiable Instrument Act.
2. Heard learned Advocate Mr. Ashok Purohit for Mr. J.C. Vyas for the petitioner, learned Advocate Mr. Bhairaviya for the respondent No.1 – original accused and learned APP Mr. Jani, appearing on behalf of the respondent – State.
3. Learned Advocate for the petitioner has contended that the impugned order passed by the learned Magistrate is erroneous and without appreciating the facts of the case and without considering the provisions contained under the Code of Criminal Procedure. He has contended that cheque in question was represented by the petitioner on the instruction of respondent No.1 – accused and even on the second occasion the said cheque was dishonoured on the ground of “insufficient fund” and thereafter the petitioner has issued notice to the respondent No.1 within the stipulated time and filed complaint against the respondent No.1 – accused under the provision of Section 138 of Negotiable Instrument Act as well as under the provisions of Sections 406 and 420 of I.P. Code. He has contended that in the present case, earlier the learned Magistrate has issued sommons and on the next date of hearing the learned Magistrate has granted Application Exh.7 for discharge, filed by the respondent No.1 – accused and has acquitted him. He has contended that in a summons triable case, the accused cannot be discharged. He has relied upon the decision of this Court in the case of MEHTA PRAFULCHANDRA KALIDAS v/s PATEL CHELJIBHAI KALIDAS & ANR., reported in 2006 (1) GLH 211. He has, therefore, contended that in view of the decision of this Hon'ble Court and in the facts of the case, the learned Magistrate has misinterpreted Section 258 Cr. P.C. and wrongly acquitted the respondent No.1 from the prosecution. He has also relied upon the decision of the Hon'ble Apex Court, reported in (2001) 6 SCC 30 wherein it has been observed that “the provisions of Section 258 Cr.P.C. which deals with the discharge of accused in summons triable cases, does not apply to cases instituted upon a complaint.” Relying upon the said decision, the learned Advocate for the petitioner has contended that the present case is instituted on a complaint and hence the endeavour made by the accused to find help from Section 258 is of no avail.
4. Learned Advocate Mr. Bhairavia for the respondent No.1 – original accused has fairly admitted that he is not in a position to convince this Court that there is any provision in Cr.P.C. that in summons triable case the accused should have been acquitted by the learned Magistrate on the application for discharge. I have also heard learned A.P.P. Mr. Jani.
5. Heard the learned Advocates for the respective parties. I have also perused the record and also gone through the provision of law. It appears that in this matter, the court has not entered into the merits and the fate of the matter, but, simply without considering the question of law as to whether in summons triable case the Court has power to acquit the accused on discharge application or not, has granted the discharge application on the ground of delay in filing the complaint from the date of issuance of first Notice and acquitted the respondent No.1 – accused. I am, therefore, of the opinion that the learned Magistrate has committed grave error in acquitting the respondents – accused on his filing discharge application, without considering the question of law.
1. In view of above, this Revision Application is allowed. The order dated 13.8.2002 passed below Application Exh.7 in Criminal Case No. 6 of 2002 by the learned Judicial Magistrate, First Class, Maliya – Miyana, is quashed and set aside. The matter is remanded to the Court of learned J.M.F.C., Maliya-Miyana, with direction to decide the criminal case afresh purely on merits, after giving full opportunity of hearing to both the parties and in accordance with law, as early as possible, preferably within a period of six months from the date of receipt of Record & Proceedings. The criminal case be restored at its original file. Rule is made absolute accordingly. Office is directed to send Record & Proceeding, if any, to the trial Court forthwith.
(Z.K.SAIYED, J.) sas