ORAL JUDGMENT :- Rule. Returnable forthwith. Heard finally by consent of parties.

2. The petitioner herein seeks to challenge the order passed by the learned Judicial Magistrate, First Class, Murtizapur, in Summary Criminal Case No. 585/04, dated 11-7-2007, by which he dismissed the application of the petitioner for dropping the proceedings against him, in complaint case under section 138 of the Negotiable Instruments Act, filed by the respondent.

3. Facts leading to the petition, can be stated in nutshell; thus:

The respondent/complainant has filed a criminal complaint under section 138 of the Negotiable Instruments Act, bearing Summary Criminal Case No. 585/2004 in the Court of Judicial Magistrate, First Class, Murtizapur. When the proceedings were fixed for filing the affidavit in the nature of evidence, the petitioner filed an application for dropping the proceedings against him under section 258 of the Code of Criminal Procedure. The prayer therein reads thus:

"It is, therefore, prayed that the Hon'ble Court may kindly be pleased to allow this application in the interest of justice and equity. Till then the further recording of the evidence may kindly be deferred till the decision on this application." The reasons for which this application was filed, according to the petitioner/accused, were that the complaint does not make out a criminal offence under section 138 of Negotiable Instruments Act; the complainant is misusing the relevant provision; the notice issued to the accused/petitioner was not proper; the complaint was barred by limitation; if the proceedings are not dropped, it would be causing serious hardship and injustice to the petitioner/accused. With these main contentions, the petitioner claimed stopping of the proceedings as per above prayer.

4. Learned J.M.F.C. Murtizapur, heard the parties. So also considered the say of the complainant/respondent. He found that in view of the judgment of the Apex Court in Adalat Prasad vs. Rupal Jinda, reported in 2004(4) Mh.L.J 274, the process cannot be recalled. He further found that in summary proceedings, there is no provision at all to drop the proceedings after the stage of recording of evidence is commenced and therefore, the application which is moved by the petitioner/accused is not tenable in the eye of law. As such, he dismissed the application of the petitioner/accused by his order dated 11-7-2007.

5. By this petition under Article 227 of the Constitution of India, as well as under section 482 of Criminal Procedure Code, the petitioner seeks to challenge that order.

6. Learned counsel for the petitioner has submitted that the complainant/respondent has failed to make out a case under section 138 of the Negotiable Instruments Act against the petitioner/accused. According to him, considering the totality of the circumstances and facts pleaded in the complaint, there cannot be any case for trial against the petitioner/accused. He further submitted that the respondent/complainant has mentioned false facts. Further, according to him, the complaint is barred by limitation. The cheque issued by the petitioner was not for legal liability or for satisfaction of any debt. The complaint, even if taken as a whole, would not make out any offence against the petitioner. He further claimed that the offence under section 138 of the Negotiable Instruments Act cannot be treated at par with an offence under Indian Penal Code. Therefore, according to him, if the proceedings in a complaint filed by the respondent are allowed to be continued, serious prejudice and injustice would be caused to the petitioner/accused. Therefore, he submitted that the proceedings against the petitioner/accused should be dropped/stopped by setting aside the order passed by the learned J.M.F.C., Murtizapur. It is also his submission that the present respondent has filed summary criminal case (presumably civil suit) before the Civil Judge, Senior Division, Akola, for recovery of the amount and the pleadings in t

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