The Magistrate does not have the power to discharge an accused in a summons case, and the accused cannot be allowed to give evidence after the issue of summons.

By way of the present petition filed under Section 482 Cr. P. C., the petitioners seek to set aside the order dated 1-5-2007 passed by the Court of Shri N. K. Gupta, ASJ, Delhi in Revision Petition No. 17/2007, preferred by the respondent against the order dated 30-11-2006 passed by the Court of learned M. M. Delhi in complaint No. 400/2005 thereby acquitting the present petitioners.

2. The brief facts of the case relevant for deciding the present petition are that the respondent filed a Criminal Complaint No. 400/2005 under Sections 138 & 142 of the Negotiable Instruments Act against the petitioners. The petitioners while appearing before the Court of learned M. M. Delhi, took a preliminary objection that the complaint filed by the complainant respondent is not maintainable as the same did not fulfil the mandatory requirements of the offence punishable under Section 138 of Negotiable Instruments Act as the cheques in question were not presented for encashment during their validity period i.e. within six months from the date of the cheques. The Court after hearing the arguments of both the parties and after going through the documents filed by the complainant respondent acquitted the petitioners vide order dated 30-1-12006. Feeling aggrieved by the said order the complainant respondent preferred a revision petition bearing No. 17/2007 before the Sessions Court. The learned ASJ vide order dated 1-5-2007 set aside the order dated 30-11-2006 passed by the learned M. M. and directed the petitioners to appear before the trial Court on 8-5-2007. The petitioners have thus' preferred the present petition impugning the order dated 1-5-2007.

3. Mr. Rajiv Kumar learned counsel for the petitioners contended that the order of acquittal passed by the learned M. M. was based on the material placed by the complainant respondent itself as the cheques in question were not presented for encashment within their validity period i.e. within six months from the date of issuance of the cheques counsel further contended that as per Section 378 (4) Cr. P. C., only appeal could lie against the acquittal order dated 30-11-2007 and not a revision petition. In support of his contention the counsel placed reliance on the judgment of the Apex Court in Shri Ishar Alloys Steels Ltd. v. Jayaswala NECO Ltd. AIR2001 SC 1161 : 2001 Cri LJ 1250 and judgment of this Court in RPG Transmission Ltd. v. Sakura Seimitsu (I) Ltd. & anr., 2005 (2) DCR 597 : 2005 Cri LJ 2862. Counsel submitted that the cheque bearing No. 962590 for an amount of Rs. 10 lac dated 25-2-2005 was valid upto 24-8-2005 and was presented firstly on 14-3-2005 and then on 31-8-2005 i.e., after the expiry of six months and on it this ground alone the complaint was not t maintainable which is clear from the endorsements made on the reverse of the cheque. Counsel further contended that the learned ASJ did not take note of the fact that in para 9 of the complaint the complainant itself has admitted that the second cheque bearing No. 962592 dated 2-3-2005 for an amount of Rs. 5 lacs was presented by it on 2-9-20051 for encashment, when already the validity of the said cheque had expired on 1-9-2005.

4. Counsel for the petitioners contended that the application under Section 294 moved by the petitioners was only for admission and denial of the documents and not seeking discharge of the petitioners and the learned ASJ wrongly observed that instead of preferring revision petition against the summoning order the petitioners had filed the application seeking recalling of the summoning order in the garb of filing an application for discharge. Counsel further contended that the learned ASJ has also ignored the ingredients of the Section 138(a), (b) & (c) which are necessary to attract the offence triable under Section 138 of N.I. Act. The counsel also relied on the following judgments in support of his contentions :-

K. M. Mathew v. State of Kerala - 1992 Cri LJ 3779 and S. C. Rastogi v. Smt. Renu Kalra - 2