Discharge Application U/S 258 CrPC Not Maintainable In A Proceeding Of Complaint Case U/S 138 NI Act: Allahabad HC
The Allahabad High Court observed that a discharge application filed under Section 258 CrPC is not maintainable in the proceeding of complaint case under Section 138 Negotiable Instruments Act.
The Applicant filed an application under Section 482 Cr.P.C. to quash the order rejecting the discharge application and to quash the complaint proceeding under Section 138 N.I. Act.
The Bench of Justice Arun Kumar Singh Deshwal observed “From the above analysis as well as law laid down by the Apex Court, it is clear that unless proceeding of complaint case under Section 138 N.I. Act specifically converted into summon case or into trial case then the provision of summon case or warrant case cannot be strictly applied in the proceeding under Section 138 N.I. Act. In the present case, Magistrate has not passed any order for converting the trial of impugned proceeding from summary trial into warrant case. Once it is established that provisions of warrant case are not applicable then question of applicability under Section 245 Cr.P.C. regarding discharge of accused does not arise.”
Advocate Rakesh Kumar Singh appeared for the Applicant.
The Trial Court rejected the aforesaid discharge application on the ground that the discharge application is not maintainable as per the judgment of the Apex Court in Adalat Prasad vs Rooplal Jindal and others wherein it was observed that the summoning order cannot be recalled by the court which had issued the same.
The Court, while placing its reliance on Re: Expeditious Trial of Case u/s 138 N.I. Act, observed that “This Court also held that discharge application under Section 258 Cr.P.C. is also not maintainable as that section applies where summons case instituted otherwise than upon complaint, but proceeding under Section 138 N.I. Act instituted on the basis of complaint. Hon'ble Apex Court in the case of Re: Expeditious Trial of Case u/s 138 N.I. Act (supra) already clarified this legal position.”
The Court remarked that it is always open for the Applicant to raise all grounds before the trial court.
Accordingly, the Court dismissed the Application.
Cause Title: Jai Prakash Goyal v. State of U.P. & Anr. (Neutral Citation: 2024:AHC:51737)
Appearances:
Appellant: Advocate Rakesh Kumar Singh
Respondents: Government Pleader