IMPORTANT POINT
The legal point established is that the provisions of warrant case are not applicable in the proceeding under Section 138 N.I. Act, and the discharge application under Section 258 Cr.P.C. is not maintainable in such cases.

JUDGMENT :

1. Heard learned counsel for the applicant, Sri Ramesh Kumar, learned A.G.A for the State and perused the record.

2. The present application under Section 482 Cr.P.C. has been filed for quashing the order dated 16.12.2023 passed by Presiding Officer, Additional Court No.3, Agra as well as entire proceeding of Complaint Case No.35153 of 2018, under Section 138 N.I. Act, Police Station Hari Parwat, District Agra pending in the court of Additional Court No.3, District Agra.

3. Facts giving rise to the present case is that on issuance of summon order against the applicant under Section 138 N.I. Act, the applicant filed an Application u/s 482 Cr.,P.C. No. 6433 of 2019 challenging the entire proceedings of Complaint Case No.3513 of 2018. That case was disposed of by this Court vide order dated 18.02.2019 permitting the applicant to raise all the dispute regarding the complaint before the trial court. Thereafter, the applicant filed a discharge application before the trial court on 05.03.2019. In that discharge application, the applicant has raised number of issues including the issue of pre-mature complaint as well as cheque in question was given as security, therefore no liability under Section 138 N.I. Act is made out and also that complaint was filed by stranger, hence not maintainable. The trial court vide order dated 16.12.2023 rejected the aforesaid discharge application vide order dated 16.01.2023 on the ground that discharge application is not maintainable as per judgement of Hon'ble Apex Court in Adalat Prasad vs Rooplal Jindal and others; 2004 (7) SCC 338 wherein it is observed that the summoning order cannot be recalled by the court which had issued the same.

4. The contention of counsel for the applicant is that the impugned order dated 16.12.2023 is bad in law; firstly because the court has not considered the issue raised in its discharge application. Secondly, the court has erroneously held that the discharge application is not maintainable after passing the summoning order. Counsel for the applicant further submits that as per proviso of Section 143 N.I. Act, in the proceeding under Section 138 N.I. Act, Section 262 to 265 Cr.P.C. will be followed and Section 262 Cr.P.C. specifically mentioned that during summary trial of case, proceeding of summon case has to be followed and proceeding of summon case has been mentioned in Chapter 20 of Cr.P.C. which cover Sections 251 to 259 and Section 259 specifically provides that the trial court may convert summons case into warrant case in appropriate case, therefore the provisions of the warrant case mentioned in Chapter 19 of Cr.P.C. will also applicable in proceeding under N.I. Act. Therefore, discharge application under Section 244 Cr.P.C. in the proceeding under Section 138 N.I. Act is very well maintainable.

5. Learned counsel for the applicant also submitted that as the complaint itself was premature, therefore, proceeding under Section 138 N.I. Act was itself bad in eye of law as per judgement of Apex Court in the case of Yogendra Pratap Singh vs Savitri Pandey & Anr.; JT2014 (10) SC 444.

6. Counsel for the applicant also relied upon the judgement of Apex Court in the case of Janki Vashdeo Bhojwani and another vs Indusland Bank Ltd; AIR 2005 Supreme Court 439, wherein it was observed that power of attorney holder cannot depose instead of the principal.

7. Per contra, learned AGA submitted that application for discharge is not applicable in the proceeding under N.I. Act unless the court pass specific order converting from the proceeding of summon case to warrant case as required under Section 259 Cr.P.C. and in the present case, the court has not passed any order for converting for summary trial to warrant trial.

8. After considering the submissions of learned counsel for the parties and perusal of record, it appears that in the present case, the applicant has challenged the order dated 16.12.2023 by which discharge application of the applicant was rejected. Therefore,