ORAL JUDGMENT :- Rule. Returnable forthwith. Heard finally by consent of parties. 2. The petitioner herein seeks to challenge the order passed by the learned Judicial Magistrate, First Class, Murtizapur, in Summary Criminal Case No. 585/04, dated 11-7-2007, by which he dismissed the application of the petitioner for dropping the proceedings against him, in complaint case under section 138 of the Negotiable Instruments Act, filed by the respondent. 3. Facts leading to the petition, can be stated in nutshell; thus: The respondent/complainant has filed a criminal complaint under section 138 of the Negotiable Instruments Act, bearing Summary Criminal Case No. 585/2004 in the Court of Judicial Magistrate, First Class, Murtizapur. When the proceedings were fixed for filing the affidavit in the nature of evidence, the petitioner filed an application for dropping the proceedings against him under section 258 of the Code of Criminal Procedure. The prayer therein reads thus: "It is, therefore, prayed that the Hon'ble Court may kindly be pleased to allow this application in the interest of justice and equity. Till then the further recording of the evidence may kindly be deferred till the decision on this application." The reasons for which this application was filed, according to the petitioner/accused, were that the complaint does not make out a criminal offence under section 138 of Negotiable Instruments Act; the complainant is misusing the relevant provision; the notice issued to the accused/petitioner was not proper; the complaint was barred by limitation; if the proceedings are not dropped, it would be causing serious hardship and injustice to the petitioner/accused. With these main contentions, the petitioner claimed stopping of the proceedings as per above prayer. 4. Learned J.M.F.C. Murtizapur, heard the parties. So also considered the say of the complainant/respondent. He found that in view of the judgment of the Apex Court in Adalat Prasad vs. Rupal Jinda, reported in 2004(4) Mh.L.J 274 , the process cannot be recalled. He further found that in summary proceedings, there is no provision at all to drop the proceedings after the stage of recording of evidence is commenced and therefore, the application which is moved by the petitioner/accused is not tenable in the eye of law. As such, he dismissed the application of the petitioner/accused by his order dated 11-7-2007. 5. He further found that in summary proceedings, there is no provision at all to drop the proceedings after the stage of recording of evidence is commenced and therefore, the application which is moved by the petitioner/accused is not tenable in the eye of law. As such, he dismissed the application of the petitioner/accused by his order dated 11-7-2007. 5. By this petition under Article 227 of the Constitution of India, as well as under section 482 of Criminal Procedure Code, the petitioner seeks to challenge that order. 6. Learned counsel for the petitioner has submitted that the complainant/respondent has failed to make out a case under section 138 of the Negotiable Instruments Act against the petitioner/accused. According to him, considering the totality of the circumstances and facts pleaded in the complaint, there cannot be any case for trial against the petitioner/accused. He further submitted that the respondent/complainant has mentioned false facts. Further, according to him, the complaint is barred by limitation. The cheque issued by the petitioner was not for legal liability or for satisfaction of any debt. The complaint, even if taken as a whole, would not make out any offence against the petitioner. He further claimed that the offence under section 138 of the Negotiable Instruments Act cannot be treated at par with an offence under Indian Penal Code. Therefore, according to him, if the proceedings in a complaint filed by the respondent are allowed to be continued, serious prejudice and injustice would be caused to the petitioner/accused. Therefore, he submitted that the proceedings against the petitioner/accused should be dropped/stopped by setting aside the order passed by the learned J.M.F.C., Murtizapur. It is also his submission that the present respondent has filed summary criminal case (presumably civil suit) before the Civil Judge, Senior Division, Akola, for recovery of the amount and the pleadings in the said suit are entirely different than the facts stated in the notice dated 16-5-2004. Therefore, according to him, the proceedings against the petitioner are based on incorrect facts and therefore, they are liable to be dropped. 7. As against this, learned counsel for respondent No. 1 while raising preliminary objection as regards maintainability, contended that as the proceedings filed by the complainant are not filed by the police authorities, the provisions of section 258 of the Code of Criminal Procedure are not applicable. 7. As against this, learned counsel for respondent No. 1 while raising preliminary objection as regards maintainability, contended that as the proceedings filed by the complainant are not filed by the police authorities, the provisions of section 258 of the Code of Criminal Procedure are not applicable. Further, according to him, there is no provision under the Code of Criminal Procedure to discharge the accused in the midway of the trial. According to him, the complainant had filed his affidavit in examination-in-chief and thereafter the petitioner/accused is prolonging the matter. Mainly his contention is that as the provisions of section 258 of Criminal Procedure Code are not applicable to ,the present proceedings, the same cannot be dropped or stopped. On merits he has submitted that the offence under section 138 of Negotiable Instruments Act has been made out considering the presumption under section 139 of the said Act. He, therefore, submitted that the writ petition filed by the petitioner is devoid of any merit and therefore, it is liable to be dismissed. 8. Few facts before considering the contentions of the rival parties need to be noted. The complaint filed by the respondent is under section 138 of the Negotiable Instruments Act read with section 420 of Indian Penal Code. The process has been issued. The petitioner/accused has appeared. He has not challenged the order of issue of process. The stage of the proceedings was the filing of the affidavit by the complainant in examination-in-chief, which he had filed. The application of the petitioner himself states that the present case is fixed for evidence of the complainant. The complainant has filed the affidavit in examination-in-chief on record and exhibited the documents which are referred to in the affidavit. Thus, it clearly appears that the trial against the petitioner has already proceeded. 9. Learned counsel for the petitioner has relied on 2002 Cri.L.J. 3469, Bharatbhai K. Patel vs. C. L. Verma, wherein it has been observed thus; "At the initial stage of the proceedings, the High Court is not justified in entertaining and accepting the plea that there was no debt or liability. Defence plea cannot be entertained in quashing proceedings. 9. Learned counsel for the petitioner has relied on 2002 Cri.L.J. 3469, Bharatbhai K. Patel vs. C. L. Verma, wherein it has been observed thus; "At the initial stage of the proceedings, the High Court is not justified in entertaining and accepting the plea that there was no debt or liability. Defence plea cannot be entertained in quashing proceedings. But in the cases where the petitioner accused is able to show to the Court that there was no existing debt or liability at the time of presentation of the cheque for encashment on the basis of the conduct of the complainant or admission made by the complainant that may be in other legal proceedings, then in such cases, the proceedings can be terminated and the accused should not be asked to face the trial till it is concluded. Thus when the accused petitioner had successfully rebutted the presumption at initial stage and has pointed out the basic infirmity as to maintainability of the proceedings, the High Court allowed the petitions for quashing of criminal proceedings." in support of his contentions. 10. As against this, learned counsel for the respondent has relied on the observations of the Apex Court in AIR 2001 SC 2651 , John Thomas vs. Dr. K. Jagadeesan, in paras 6, 7, 8 and 9, which are thus- "6. The trial Magistrate, on the above reasoning, discharged the appellant as per its order dated 10-2-1995. The complainant filed a revision before the High Court of Madras challenging the aforesaid order of discharge. A single Judge of the High Court reversed the order and restored the criminal proceedings to reach its logical culmination in accordance with law. It is the said order of the High Court which the appellant/accused is challenging now. The learned single Judge noticed that the trial Court has already recorded evidence of two witnesses for the prosecution. He did not consider the points found against by the trial Court, instead he observed that the trial Court in a summons case cannot discharge the accused after passing over to the stage of evidence. According to the learned single Judge, the accused should have filed the application for discharge immediately after he entered appearance and if he has not done so he could not do it after the Court has moved the stage of evidence taking. According to the learned single Judge, the accused should have filed the application for discharge immediately after he entered appearance and if he has not done so he could not do it after the Court has moved the stage of evidence taking. What the learned single Judge has stated on that aspect reads as follows: "If such an application is filed before the Court immediately after entering appearance before commencement of the trial as envisaged in Chapter XX; Criminal Procedure Code the petition is maintainable. But now, the stage has passed and the evidence of two witnesses on the side of prosecution was recorded and at this stage in the absence of any provision for discharge of the accused the Magistrate ought not to have discharged the accused and he should have allowed the trial to flow in accordance with the established procedure ". 7. The appellant questioned the aforesaid view of the learned single Judge on the strength of section 258 of the Code of Criminal Procedure. It must be pointed out that the offence under section 500 of the Indian Penal Code is triable as a summons case in accordance with the provisions contained in Chapter XX of the Code. Sections 251 to 257 of that chapter deal with the steps to be adopted from the commencement up to culmination of the proceedings in summons case. One of the normal rules in summons cases is that once trial started, it should reach its normal culmination. But section 258 is included in that chapter in the form of an exception to the aforesaid normal progress chart of the trial in summons cases. It is useful to extract the section here: "258. Power to stop proceedings in certain cases.- In any summons case instituted otherwise than upon complaint, a Alagistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witness has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge. " 8. Summons cases are generally of two categories. Those instituted upon complaints and those instituted otherwise than upon complaints. " 8. Summons cases are generally of two categories. Those instituted upon complaints and those instituted otherwise than upon complaints. The latter category would include cases based on police reports. Section 258 of the Code is intended to cover those cases belonging to one category along i.e. summons cases instituted otherwise than upon complaints". The segment separated at the last part of the section by the words "and in any other case" is only a subcategory or division consisting of "summons cases instituted otherwise than upon complaints". That sub-category is not intended to cover all summons cases other than those instituted on police report. In fact, section 258 vivisects only "summons cases instituted otherwise than on complaints" into two divisions. One division consists of cases in which no evidence of material witnesses was recorded. The section permits the Court to acquit the accused prematurely only in those summons cases otherwise than on complaints wherein the evidence of material witnesses was recorded. But the power of Court to discharge an accused at midway stage is restricted to those cases instituted otherwise than on complaints wherein no material witness was examined at all. 9. The upshot of the above is that section 258 of the Code has no application to cases instituted upon complaints. The present is a case which was instituted on complaint. Hence the endeavour made by the accused to find help from section 258 of the Code is of no avail." 11. At this stage, it is necessary to see the provisions of section 258 of Code of Criminal Procedure. The same are also extracted in John's case. The provisions of section 258 clearly enjoins that in any summon cases instituted "otherwise than upon a complaint", a Magistrate of First Class may for reasons to be recorded stop the proceedings. It is obvious that in the present case, the proceedings are instituted by the respondent i.e. complainant. The observations of the Apex Court in John's case in AIR 2001 SC 2651 , referred above, would be clearly attracted for considering the scope of section 258 of the Code of Criminal Procedure. , 12. Here is the case where the evidence of the parties has begun and the order of issue of process was not challenged by the petitioner/accused at the proper stage. Hence, the trial needs to be culminated and taken to its logical end. 13. , 12. Here is the case where the evidence of the parties has begun and the order of issue of process was not challenged by the petitioner/accused at the proper stage. Hence, the trial needs to be culminated and taken to its logical end. 13. Merely because the respondent has filed civil suit, that fact by itself could not warrant the dropping of the proceedings or stopping the same under section 258 of Criminal Procedure Code. The observations of the Apex Court in John's case, referred above, would clearly substantiate the contention of the respondent. 14. Thus, the order of the learned trial Judge does not seem to be incorrect or improper as he has taken the right view of the matter as regards applicability of the provisions of stopping of the proceedings in summary case. As such the present petition is devoid of any merit. In these circumstances, I need not go into the merits of the case of the complainant, which is for trial Court to decide. In the result, the petition is dismissed. The rule is discharged. Trial Court to expedite the matter. Petition dismissed.