The court confirmed that a Magistrate lacks inherent power to discharge an accused in Section 138 NI Act cases after process issuance, reaffirming that provisions of Section 258 Cr.P.C. do not apply.

JUDGMENT

Siddharth Mridul, J. (Open Court)--The present criminal reference petition, instituted under Section 395(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as `Cr.P.C.') has been referred by the Mr. Gaurav Sharma, learned Metropolitan Magistrate, Negotiable Instruments Act-03, Central District, Tis Hazari Courts, Delhi.

2. Shorn of all unnecessary details, the present reference raises the following questions for consideration by this Court:

"1. "To be or not to Be"

The proverbial Hamletian delimma, if were to be defined in terminology with respect to Section 138 of the Negotiable Instruments Act cases, if would read as thus:

"To discharge an accused or not to discharge an Accused".

2. The court of the referring Magistrate was seized of the complaint CC No. 519899/16 u/s 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the `NI Act') wherein which process was issued against the accused persons u/s 204 CrPC vide summoning order dated 12.01.2016. The accused persons entered an appearance and subsequently, prior to any notice of accusation u/s 251 CrPC being framed against them, an application for discharge was moved on their behalf on 22.08.2017. Disposal of the same involves a question of law, requiring deeper consideration.

3. Appropriately therefore, a Reference is sought to be made under sub section (2) of Section 395 Cr.P.C. by way of which a magistrate may refer for the decision to the Hon'ble High Court any question of law arising in the hearing of a case.

4. It is apposite to note that applications of a like nature flood all the designated NI Courts and hence, it is all the more urgent for clarifying the correct position of law in this regard.

5. As per Section 143 (1) of the NI Act, a complaint u/s 138 NI Act is treated as a summary triable case ordinarily. However, as per second proviso thereto, it may be treated as a summons triable case also. The section provides as hereunder."

3. A bare perusal of the questions referred to this Court reflects that the issues of determining Question No. 2 to Question No. 5 are dependent upon the answer to Question No. 1.

4. Mr. N. Hariharan, learned senior counsel, has ably assisted this Court as an Amicus Curiae by inviting our attention to the decision of the Constitution Bench In Re: Expeditious Trial of Cases Under Section 138 of N.I. Act, 1881, reported as 2021 SCC Online SC 325, and in particular paragraphs 18-24, which enunciates as follows:

"18. It was contended by learned Amici Curiae that a holistic reading of Sections 251 and 258 of the Code, along with Section 143 of the Act, should be considered to confer a power of review or recall of the issuance of process by the Trial Court in relation to complaints filed under Section 138 of the Act. He referred to a judgment of this Court in Meters and Instruments Private Limited and Another v. Kanchan Mehta, which reads as follows:

"While it is true that in Subramanium Sethuraman v. State of Maharashtra this Court observed that once the plea of the accused is recorded under Section 252 CrPC, the procedure contemplated under Chapter XX CrPC has to be followed to take the trial to its logical conclusion, the said judgment was rendered as per statutory provisions prior to the 2002 Amendment. The statutory scheme post-2002 Amendment as considered in Mandvi Coop. Bank and J.V. Baharuni has brought about a change in law and it needs to be recognised. After the 2002 Amendment, Section 143 of the Act confers implied power on the Magistrate to discharge the accused if the complainant is compensated to the satisfaction of the court, where the accused tenders the cheque amount with interest and reasonable cost of litigation as assessed by