Court No. - 72
Case :- CRIMINAL REVISION No. - 3618 of 2019 Revisionist :- Vijay Rastogi Opposite Party :- State Of U.P. And Anr.
Counsel for Revisionist :- Ajay Kumar Rastogi,Rajeev Chaddha Counsel for Opposite Party :- G.A.
Hon'ble Rajiv Joshi,J.
Heard Sri Rajeev Chaddha, learned counsel for the revisionist and learned AGA for the State.
Present revision under Section 397/401 Cr.P.C. has been challenging the order dated 27.07.2019 passed by Additional Chief Metropolitan Magistrate IXth, Kanpur Nagar in Complaint Case No. 6296 of 2018 (Ravi Gupta Vs. Vijay Rastogi), whereby the application filed by the revisionist for discharge under Section 245 (2) Cr.P.C. has been rejected.
Contention of learned counsel for the revisionist is that as per the averments made in the complaint, the cheque was issued by the revisionist on account of some debt upon M/s Laxmi Trading Company and in fact, he has not issued any cheque.
I have considered the argument so raised by learned counsel for the revisionist and perused the record.
The revisionist was summoned vide order dated 2.11.2018 for facing the trial under Section 138 of N.I. Act. Subsequently, the said summoning order was challenged in application under Section 482 no. 16007 of 2019 in which the prayer for quashing the summoning order was refused. However, the direction was given by this Court that in case, the applicant file any appropriate application before the concerned Magistrate under Section 245 (2) Cr.P.C. for discharge, the same shall be considered.
Ultimately, the discharge application filed by the revisionist was rejected vide impugned order. The Magistrate has recorded whatsoever the defence, which has been raised by the revisionist about factual controversy, can only be seen after the evidence has come and on this ground, the revisionist cannot be discharged.
I do not find any illegality or infirmity in the order impugned herein. Although, it is well settled that unless and until, the accused-revisionist appear before the court concerned and lay evidence as per Section 244 Cr.P.C., the proceedings for discharge under Section 245 (2) is not at all attracted. The said view has been affirmed by this Court in application under Section 482 No. 38531 of 2018 (Shyamdhani Gupta and 2 others Vs. State of U.P. and another).
In view of the above, the revision lacks merit and is, accordingly, dismissed.
Order Date :- 26.9.2019 Noman