The main legal point established in the judgment is that the provisions of section 245 Cr.P.C. relating to the trial of warrant-case are not applicable to a summons-case under section 138 of the Negotiable Instruments Act.

K. N. Sinha, J. : Both the revisions arise out of the orders dated 15.7.2004 passed by the Additional Civil Judge (Junior Division) Court No. 1, Varanasi, exercising the powers of Judicial Magistrate. Common question of law is involved in both the revisions, hence taken up together for hearing and disposal.

2. According to the facts of Criminal Revision No. 3418/2004 revisionist Sanjeev Rai filed a complaint against Ram Prasad Mishra under section 138 of the Negotiable Instruments Act, 1881, on the ground that Ram Prasad Mishra had borrowed Rs. 30,000/- in January, 2003. After six months, the complainant demanded his money back whereupon the respondent No. 2 Ram Prasad Mishra gave five cheques of Union Bank of India, which were deposited by the revisionist in Oriental Bank of Commerce, Sigra, Varanasi, but it was dishonoured on account of want of fund. The complainant gave a notice for payment of money, and on its non-payment, filed the complaint.

3. On the similar ground, the complaint was presented in the matter of Revision No. 3436/2004.

4. The accused-respondent No. 2 filed an application under section 245 (2) Cr.P.C. for the discharge. The said application was allowed by the impugned order and respondent No. 2 Ram Prasad Mishra was discharged under the provisions of section 245 Cr.P.C.

5. A counter affidavit was filed by respondent No. 2 in the case No. 3418/2004 on the ground that in 1996 respondent borrowed Rs. 40,000/- from the revisionist on 10 per cent interest whereupon the revisionist imposed several conditions and had taken six blank cheques and also got a hand note executed. The respondent No. 2 returned the entire money with interest in 1997 and demanded back the blank cheques, to which the revisionist told that it was destroyed. It appears that those cheques have been used by the revisionist.

6. I have heard Sri H.K. Sharma learned Counsel for the revisionist and Sri Harsh Chandra Dwivedi, learned Counsel for the respondent and perused the record. The sole question raised by the learned Counsel for the revisionist is that the offence under section 138 of the Negotiable Instruments Act is a summons trial and provisions of section 245 Cr. P.C. does not apply. The Magistrate has wrongly discharged the accused-respondent No. 2 by applying the said provision.

7. The provisions of section 138 of the Negotiable Instruments Act, 1881 (as amended up-to-date) show that the offence under section 138 of the Negotiable Instruments Act shall be punishable with imprisonment for a term which could be extended to two years or with fine which may extend to twice the amount of cheques. (The term of imprisonment has been raised from one year to two years by amending Act No. 55 of 2002). According to section 2 (w) of the Cr.P.C. "summons-case" means a case relating to an offence, and not being a warrant-case. The "warrant-case" has been defined in section 2 (x) of the Cr. P.C. which means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years'. Thus, offence under section 138 of the Negotiable Instruments Act is a summons-case. The trial of the summons-case is controlled by Chapter XX of the Cr.P.C. where there is no provision for the discharge. Section 245 Cr.P.C., which has been applied by the Magistrate, relates to the trial of warrant-case which is controlled by. Chapter XIX, Cr. P.C. which is not applicable to the present case which is a summons-case.

8. It appears from the record that when the accused appeared in pursuance of the summons, he applied for discharge under section 245 (2) Cr. P.C. and the same was allowed. The approach of learned Magistrate is patently erroneous and against the law firstly, because the summoning order cannot be recalled and there is no provision for the discharge in a summons-case. The Magistrate has wrongly allowed the application by applying section 245 Cr.P.C. The learned Magistrate should take care of the law while pa