Dharmendra Singh Bhadouriya vs Rohit Goyal

B.D. Rathi, J.—This petition has been preferred for invoking the inherent powers of this Court vested u/s 482 of Cr.P.C., seeking relief that the order dated 10-9-2013 (Annexure P-4) passed by JMFC, Gwalior, in Criminal Case No. 2812/2013 and revisional order dated 12-12-2013 passed by the learned Sessions Judge, Gwalior, in Criminal Revision No. 424/2013 be quashed. The application preferred by the petitioners before the Trial Court u/s 245 of Cr.P.C. (hereinafter referred to as "the Code") be allowed and discharge the petitioners of the offence punishable u/s 138 of Negotiable Instruments Act. The entire case and the impugned orders have been perused.

One private complaint has been preferred by respondent-Rohit Goyal against the petitioners. Same was registered for the offence punishable u/s 138 of the Negotiable Instruments Act by the JMFC, Gwalior on 10th September, 2013. Charge u/s 138 of the Negotiable Instruments Act was framed against the petitioners by dismissing the application of the petitioners filed u/s 245 of Cr.P.C. The application was dismissed on the ground that it is a case of summon trial and provision of Section 245 of the Cr.P.C. are not applicable, the revision, preferred against this order was also dismissed.

It is submitted by the petitioners'' lawyer that by Cheque No. 0226532, dated 11-10-2012, amount of Rs. 1,00,000/- and Cheque No. 0226512, an amount of Rs. 50,000/- on 10-9-2012 was already paid to the complainant/respondent but fraudulently he has not returned the deposited cheques, kept with complainant for security purpose. In support of his contention, he has filed the statement of HDFC Bank. This fact was not considered by the Courts below and when the deposited amount has already been paid then the charge u/s 138 of Negotiable Instruments Act could not be framed.

In considered view of this Court, the petition is devoid of merits and liable for dismissal because the issue raised by the petitioners could not be considered by the Trial Court at the stage of stating particulars of offence to the accused u/s 251 of the Code. It is an admitted fact that the cheques involved in this case were issued by the petitioners and the same were dishonored. Prima facie this fact is sufficient to frame the charge against the petitioners u/s 138 of Negotiable Instruments Act. Apart that Provision of Section 245 of the Code is not applicable in this case. Trial u/s 138 of Negotiable Instruments Act is a summons trial and procedure for trial of summons cases has been provided under Chapter XX as Section 251 to Section 255 of the Code. Provision of Section 245 of Code, under which application for discharging was made by petitioners before Trial Court, has been made for the trial of warrant cases. Section 245 of Code is not applicable in the trial of summons cases.

In summons trial, there is no provision to consider the defence at the time when particulars of the offence are stated to the accused u/s 251 of the Code.

The difference between Section 245 and Section 251 of the Code is that u/s 245, there is an opportunity for complainant as well as accused to produce evidence in respect of their cases before framing the charge and after taking into consideration the aforesaid evidence, it is decided by the Trial Court that whether any case is made out or not for framing the charge but u/s 251 of the Code such type of opportunity to lead evidence is not available.

As per the provision of Section 251 of the Code, in a summons case when accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him meaning thereby there is no provision to record the evidence of both the parties in respect of their case before stating the particulars of offence, as in warrant trial case.

For taking into consideration the defence of petitioner it was necessary to take evidence on the point of payment and cheques were kept for security purpose. But, as discussed above u/s 251 of the Code such procedure has not been prescribed.

In the aforesaid, premises, the order by the Trial Court and also the order passed by the learned Revisional Court are well-merited. No interference is called for. Petition is devoid of merits and is hereby dismissed.