Petition for discharge of accused not sustainable.

COMMON ORDER:

The petitioner in both the revision cases is one and the same person and similarly, the respondent in both the cases is also the same person.

2. The petitioner filed two complaints under Section 138 of Negotiable Instruments Act against the respondent herein and both the complaints were taken on file in STR.Nos.9689/1999 and 9688/1999 by the Judicial Magistrate No.II, Pondicherry.

3. The respondent/accused filed two petitions in Crl.M.P.No.423/2003 and Crl.M.P.No.422/2003 respectively under Sections 245 and 203 of Code of Criminal Procedure seeking for discharge and they were opposed by filing counter. The learned Judicial Magistrate No.II, Pondicherry, by common order, dated 7.8.2003, allowed the petitions and discharged the respondent herein of the offence under Section 138 of Negotiable Instruments Act in terms of Section 245 Cr.P.C. Challenging that order, the complainant has preferred these revisions.

4. The learned counsel for the petitioner contends that the petitions for discharge, purportedly filed under Section 245 and 203 Cr.P.C, are prima facie not maintainable under law and the trial Court has grossly erred in discharging the accused by looking into the documents which have not been tendered in evidence and proved in a manner known to law.

5. Per contra, the learned counsel for the respondent contends that the order of discharge has been made on the basis of documents produced by the respondent/accused.

6. The offence under Section 138 of Negotiable Instruments Act is punishable with imprisonment, which may extend to two years or with fine or with both and it is a summons-case. The petitions seeking for discharge of the accused were filed under Sections 245 and 203 Cr.P.C. Chapter XIX of Code of Criminal Procedure deals with trial of warrant-cases by Magistrates and Sections 238 to 243 Cr.P.C relate to cases instituted on a police report and Sections 244 to 247 Cr.P.C relate to cases instituted otherwise than on police report.

7. Section 245 Cr.P.C provides for discharge of the accused if no case against the accused has been made out upon taking all the evidence for prosecution in a warrant-case otherwise than on a police report. The said provision is not applicable to a case relating to an offence under Section 138 of Negotiable Instruments Act, since it is a summons case and the petitions for discharge, filed in the present cases, under Section 245 Cr.P.C are not maintainable.

8. The power under Section 203 Cr.P.C has also been invoked in the discharge petitions. During initiation of proceedings, the Magistrate can take cognizance of offences in any one of the three modes mentioned under Section 190(1) Cr.P.C, namely, a) upon receiving a complaint of facts b) upon a police report of such facts and c) upon information received from any other person or upon his own knowledge that such offence has been committed. "Complaint" is defined under Section 2(d) as allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code and "police report" is defined under Section 2(r) as a report forwarded by a police officer to a Magistrate under sub-section (2) of Section 173 Cr.P.C. The complaint of facts referred to in Section 190(1)(a) Cr.P.C is dealt with in Chapter XV under Sections 200 to 203 Cr.P.C.

9. Section 200 Cr.P.C contemplates examination of complainant and the witnesses by the Magistrate while taking cognizance of an offence on complaint and Section 202 Cr.P.C contemplates postponement of issue of process against the accused if the Magistrate thinks it fit to inquire into the case by himself or direct an investigation to be made by a police officer for the purpose of deciding whether or not there is sufficient ground for proceeding and after such investigation or inquiry, if the Magistrate finds no sufficient ground for proceeding, he can dismiss the complaint by recording the reasons under Section 203 of the Code.

10. If there is sufficient ground for proceed