The court clarified that Section 251, Cr. P.C. does not empower the Magistrate to discharge the accused in summons cases, and there is no provision in the Criminal Procedure Code to close the case or prosecution in such cases.

AMARESHWAR SAHAY, J.

1. In both the petitions, the facts and points raised are same and similar and the parties are also the same and therefore, both the petitions were heard together and are being disposed of by this common order.

2. In these petitions, the petitioner is challenging the order dated 11.7.2007 passed by the SDJM Pakur in PCR Case No. 34/2006 and PCR Case No. 35/2006 respectively whereby, the learned SDJM Pakur rejected the petitions filed by the petitioner purported to be under Section 251, Cr. P.C. for discharge of the accused persons and for closing the prosecution.

3. The relevant facts in short are that the complaint Ashok Kumar filed two complainant cases against the petitioner Dinesh Kumar Jalan, being PCR Case No. 34 of 2006 and PCR Case No. 35 of 2006. In PCR Case No. 34 of 2006, the complainant alleged inter alia that that on 20th May, 2003, the complianant being the owner of M/s. Ashoka Stone Works transferred the entire assets of M/s. Ashoka Stone Works by a Registered Deed of Sale for consideration of Rs. 40 lacs out of which, Rs. 12,50,000/- was to be paid by way of Post Dated Cheques. It was further alleged that as the Cheque was issued in the name of the complainant of the Indian Overseas Bank, Kolkata, the said Cheque was deposited on 5.1.2006 in SBI, New Alipur Branch, Kolkata which was dishonoured and accordingly, it was informed to the complainant on 6.1.2006.

In PCR Case No. 35 of 2006, the complainant alleged inter alia that that on 20th May, 2003, he being the owner of M/s. Ashoka Stone Works transferred the entire assets of M/s. Ashoka Stone Works by a Registered Deed of Sale for consideration of Rs. 15 lacs out of which, Rs. 6,25,000/- was to be paid by way of Post Dated Cheques. It was further alleged that as the Cheque was issued in the name of the complainant of the Indian Overseas Bank, Kolkata, the said Cheque was deposited on 12.7.2005 in SBI, New Alipur Branch, Kolkata which was dishonoured and accordingly, it was informed to the complainant on 13.7.2005.

Cognizance of the offence under Section 138 of the Negotiable Instruments Act was taken against the petitioner in both the cases and, thereafter, the trial proceeded against him.

4. According to the petitioner, the complainant being the owner of M/s. Ashoka Stone Works, though transferred the assets of the industry but the majority of the property being non-transferable and therefore, the petitioner/accused could not start and operate his business and there fore, he could not pay the rest of the amount as promised in the agreement. The matter ultimately reached to the Arbitrator and a consent letter dated 15.1.2007 was to be prepared in the name of the complainant by the petitioner allowing the complainant to sale the properties as his own property and to realise the agreemental value.

Thus, in view of the subsequent development, a petition under Section 251, Cr. P.C. was filed by the accused/petitioner before the trial Court stating therein that in view of the subsequent agreement, the present complaint petition cannot survive and therefore, the accused may be discharged by closing the prosecution. The said petition filed by the accused/petitioner has been rejected by the impugned order against which the present petitions have been filed.

5. Mr. Rajiv Ranjan, learned Counsel appearing for the petitioner submitted that subsequent to the filing of the complaint petition by the complainant/opposite party No. 2, the parties have also opposed the Arbitrator and an agreement letter has been issued whereby, the complainant has been allowed to sell the assets of the industry to realise his amount due and therefore, in the interest of justice, the learned Magistrate ought to have discharged the accused/petitioner and close the prosecution.

6. On the other hand, Mr. Kalyan Roy, learned Counsel appearing for the opposite party No. 2 submitted that the application filed by the petitioner/accused said to be under Section 251, Cr. P.C. was itself