The High Court erred in examining the merits of a case under S.138 prematurely instead of allowing trial for evidence.

1. Leave granted.

2. Two complaints under S.138 of the Negotiable Instruments Act were filed by the appellant against the respondents. In those complaints, the Metropolitan Magistrate, New Delhi issued summons to the respondents. An application filed by them for dropping the proceedings was dismissed in terms of the order of learned Magistrate, dated 26th April, 1999, holding that 'whether the cheques were issued for discharge of debt/liability can be decided only after recording evidence. At the stage of summoning the respondents Court has just to see whether prima facie case is made out against the accused or not under S.133 of the N. I. Act.' Further, it was held, whether the respondents have made payment by way of bank drafts in lieu of the cheques which are subject matter of complaints can also be decided at the trial and not at the stage of summoning and by way of an application seeking to drop the criminal complaint proceedings. Quite strangely, the High Court, by impugned judgment dated 14th October, 2003, while exercising revisional jurisdiction, examined the defence on merits and allowed the criminal revision petition filed by the respondents and reversed the decision of the Magistrate declining to drop the proceedings by holding that by making payment of Rs. 40 lacs, the respondents had discharged their liability. It was no stage to examine the defence of the respondents.

3. Though, at this stage, we are not going into the merits, but we may only note that the subject matter of the two complaints are four cheques in all amounting to Rs.76,55,917.47 ps. According to the respondents, they made payment of Rs. 40 lacs by six bank drafts after the issue of some of the cheques. Whether the said payment has been made or it is towards some of the amounts covered by the cheques are all the questions which can be decided only at the trial of the complaint cases under S.138 of the Negotiable Instruments Act and could not have been made the basis of allowing the revision petition. The approach of the High Court is clearly erroneous.

4. For the aforesaid reasons, we set aside the impugned judgment of the High Court and restore the Complaint Cases No. 111 and 211, dated 2nd January, 1997, to be tried on merits in accordance with law. The parties are directed to appear before the Chief Metropolitan Magistrate on 29th August, 2005 for appropriate directions.

5. The appeals are allowed accordingly.