The main legal point established in the judgment is the maintainability of revision petitions against an order discharging accused persons under Section 138 of the Negotiable Instruments Act, 1881.

BADAR DURREZ AHMED, J.

( 1 ) THESE two revision petitions are directed against the common order dated 6. 12. 2001 whereby all the accused persons except the accused Yogesh gupta have been ?discharged?. The accused persons were said to have committed the offences under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ?the Act?) read with Section 141 thereof.

( 2 ) THE learned counsel appearing for the respondent no. 2 (Sanjay chaudhary) submits at the very outset that these revision petitions are not maintainable. He referred to the decision of a learned Single Judge of this court in the case of R. P. G. Transmission Ltd. vs. Sakura Seimitsu (I) Ltd. 2005 crl. L. J. 2862. The learned counsel for the respondents submitted that the proceedings under Section 138 of the Act were proceedings pertaining to a summons-case trial and had to be in terms of the procedure laid down in Chapter xx of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ?code? ). According to the learned counsel for the respondents, this chapter did 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. According to him, in such a situation, an order of discharge has to be read as an order of acquittal under Section 255 of the Code. He, therefore, contended that against an order of acquittal only an appeal would lie and consequently, these revision petitions would not be maintainable. A similar contention was raised in the case of R. P. G. Transmission Ltd. (supra) where this court observed as under :-"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 case under Section 138 of the Negotiable Instrument 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 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 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 sections 227 or 239 of the Code. "section 258 gives power to a Magistrate in a summons-case to stop the proceedings at any stage. Such stoppage amounts to acquittal when the principal witnesses have been examined and amounts to discharge in any other case. However, this power is not available when the summons case is instituted upon complaint. Section 258 reads as under : -"258 Power to stop proceedings to certain cases - In any summons case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witness has been recorded pronounce a judgment of acquittal, and in any other case, release the accused and such release shall have the effect of discharge. Therefore, this provision of discharge is also not applicable to the present case. What has happened, therefore, is a disch

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