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2005 DIGILAW 541 (RAJ)

Narendra Nalwaya v. Ishwar Lal

2005-02-17

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-By the instant criminal revision petition under Section 397 read with Section 401 CrPC , the petitioner has challenged the order dated 29.2004 passed by the Additional Chief Judicial Magistrate No. 3, Udaipur (for short, "the trial Court" hereinafter) in Criminal Case No. 1314/2003, whereby the trial Court discharged the accused-respondent from the offence under Section 138 of the Negotiable Instrument Act, 1881 (for short, "the Act"). Aggrieved by the impugned order of discharge, the complainant-petitioner has filed the instant revision petition. 2. I have heard learned Counsel for the parties. Perused the order impugned and the relevant material. 3. The facts and circumstances giving rise to the instant revision petition are that a complaint for the offence under Section 138 of the Act was filed by the petitioner-complainant before the trial Court on 29.5.2003. After holding the inquiry as contemplated under Chapter XIV of the Code of Criminal Procedure, 1973 (for short, "the Code"), the trial Court took cognizance of the offence against the respondent and issued the process. In pursuance of the same, the respondent appeared before the trial Court on 11.2003 and at his request, the matter was adjourned to 4.2004. On 4.2004, the respondent did not appear; however, his Counsel appeared and sought exemption of his personal appearance. The Counsel appearing for the respondent also filed an application under Section 204 of the Code and that application come to the (sic) dismissed by the trial Court on 4.2004. The substance of charge was read over to the accused-respondent through the Counsel and the matter was posted to 15.2004 for recording the statement of the complainant. On 15. 2004, the complainant appeared as a witness and got himself examined. The respondent filed another application under Section 203/204 of the Code on 26.5.2004 on the ground that the cheque amount was barred by the period of limitation and, therefore, it is not legally enforceable debt. It was alleged that the amount was paid by the petitioner to the accused-respondent on 29.1999, against which the respondent issued cheque No. 753434 dated 4.2003 and the limitation for recovery of the loan amount expired on 29.2002 and, therefore, the cheque amount is not against the debt which is legally enforceable. The trial Court allowed the application and discharged the accused-respondent by the order impugned dated 29.2004. 4. The trial Court allowed the application and discharged the accused-respondent by the order impugned dated 29.2004. 4. The controversy is no more res integra in view of the decision of the Honble Supreme Court in A.V. Murrthy vs. B.S. Nagabasavanna, AIR 2002 SCW 694 , wherein the Apex Court held that dismissal of the complaint at the thresh-hold on the ground that the amount was advanced four years back and there was no legally enforceable debt, is not proper. 5. Moreso, if the trial Court once took the cognizance of the offence and framed the charge against the accused-respondent, it cannot review or recall its order. In Adalat Prasad vs. Rooplal Jindal & Ors., JT 2004 (7) SC 243, the Honble Apex Court held that if a Magistrate takes cognizance of an offence, issues process without therebeing any allegation against the accused or any material implicating the accused or in contravention of provision of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order; hence in the absence of any review power or inherent power with the subordinate criminal Courts, the remedy lies in invoking Section 482 of the Code. 6. The view taken by the Honble Supreme Court has been reiterated by a Three Judge Bench of the Honble Supreme Court in Subramanium Sethuraman vs. State of Maharashtra & Anr., 2004 CrLJ 4609 , which reads as under :- "Issuance of process under Section 204 is a preliminary step in the stage of trial contemplated in Chapter XX of the Code. Such an order made at preliminary stage being an interlocutory order, same cannot be reviewed or reconsidered by the Magistrate, there being no provision under the Code for review of an order by the same Court. Hence, it is impermissible for the Magistrate to reconsider his decision to issue process in the absence of any specific provision to recall such order." 7. In this view of the matter, the impugned order cannot be sustained and is liable to be set-aside. 8. Consequently, the revision petition is allowed. The impugned order dated 29.2004 passed by the Additional Chief Judicial Magistrate No. 3, Udaipur in Criminal Case No. 1314/2003 is hereby set-aside. In this view of the matter, the impugned order cannot be sustained and is liable to be set-aside. 8. Consequently, the revision petition is allowed. The impugned order dated 29.2004 passed by the Additional Chief Judicial Magistrate No. 3, Udaipur in Criminal Case No. 1314/2003 is hereby set-aside. The trial Court is directed to proceed with the trial of the case from the stage of passing the impugned order and decide the case expeditiously.