IMPORTANT POINT
In proceeding under Section 138 of Negotiable Instruments Act, Magistrate has to frame a notice after summoning accused.

Manju Goel, J.—These revision petitions are directed against the Order dated 18.11.2000 passed by Shri V.K. Goyal, M.M. New Delhi in complaint case Nos. 1114/98& 1528/98 whereby he discharged the accused No. 2 (respondent No. 2 herein) in cases under Section 138 of the Negotiable Instruments Act. The Orders were passed on applications of accused No. 2 for recalling the summoning Order. The plea taken by respondent No. 2 was that before the impugned cheque was issued he had resigned from the directorship of the company accused in the petition and was therefore, not liable to be prosecuted being not a person responsible for the affairs of the company at the relevant point of time. The learned Magistrate took into consideration Form 32 which was placed before him and observed that since Form 32 was not being disputed it was clear that respondent No. 2 had resigned from the company on 5.6.1998 whereas the cheques in both cases were dated 27.6.1998 & 27.9.1998 and, therefore, not liable to be prosecuted. The summoning Order against respondent No. 2 Rajiv Gupta was recalled and Rajiv Gupta was discharged in both cases. These Orders are under challenge under the provisions of Sections, 397/401 of the Code of Criminal Procedure (hereinafter referred to as the ‘Code’).

2. On merit it has been argued by the learned counsel for the petitioner that the Order of discharge could not have been passed by taking into account the document submitted by respondent No. 2 in view of the Judgment in the case of State of Orissa v. Debendra Kumar Padhi1, which says that evidence and documents produced by the accused cannot be seen at the stage of charge. The stage of charge is subsequent to summoning and appearance of the accused. If at the stage of charge such documents cannot be seen, it is obvious that the same cannot be seen at the stage of summoning. However, the challenge to the present petition by the respondents is more fundamental and requires to be decided first.

3. It is contended that the proceedings under Section 138 of the Negotiable Instruments Act was ‘summons trial’ and procedure laid down in Chapter XX of the Code was applicable. This chapter does not contemplate an Order of discharge as was available for Session’s triable case under Section 227 of the Code or a warrant triable case under Section 239 of the Code. In this situation, an Order of discharge has to be read as an Order of acquittal under Section 255 of the Code. It is then submitted that against such an Order of acquittal only an appeal will lie and, therefore, the revision is not maintainable.

4. I find myself in agreement with the submissions made by the learned counsel for the respondents. The procedure given in Chapter XX for trial of summons cases by the Magistrate starts with Section 251 which provides for substance of accusation to be stated as soon as the accused being summoned appears before the Magistrate. The Magistrate is also required to ask the accused whether he pleads guilty or has any defence to make. No formal charge is required to be framed. The proceedings in the complaint under Section 138 of the Negotiable Instruments Act commence with filing of a complaint and cognizance being taken under Section 190 (1) (a) of the Code following examination of the complainant. Since it is a summons triable case the learned Metropolitan Magistrate issued the summons under Section 204 of the Code. On being produced before the Magistrate a notice under Section 251 is required to be given. There is no provision preceding Section 251 allowing the accused to make any submission after being summoned but before being questioned as provided under Section 251 of the Code. Thus, it looks that it is imperative for the Magistrate to immediately frame a notice under Section 251 without considering if the accused can be discharged as is permissible under Section 227 or 239 of the Code.

5. Section 258 gives power to a Magistrate in a summons case to stop the proceedings at