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2009 DIGILAW 306 (CHH)

Basant Bagade v. Surendra Arora

2009-11-17

T.P.SHARMA

body2009
JUDGMENT : T.P. Sharma, J. By this petition under Section 482 of the Criminal Procedure Code the petitioner has challenged legality and propriety of the order dated 01.02.2003 passed by the Judicial Magistrate First Class, Raipur in Criminal Complaint Case No.993 of 2002, whereby learned Judicial Magistrate First Class has dismissed the application filed by the petitioner under Section 245(2) of the Criminal Procedure Code for dismissal of the complaint on the ground that the question of liability can be decided after taking evidence of the complainant at the stage of Section 245(1) of the Criminal Procedure Code. 2. Brief facts necessary for the disposal of this petition are that the petitioner has issued cheque of Rs. 2,51,000/- to respondent No. l on the basis of one agreement for purchasing certain land. According to the case of respondent No.1, after executing the said agreement, respondent No.1 presented the cheque for encashment which was dishonoured and notice as required under the provisions of the Negotiable Instruments Act, 1881 (for short the Act was issued to the petitioner, but the amount due on the cheque has not been paid to respondent No. 1 on which complaint under Section 138 of the Act was filed by the complainant/respondent No.1. 3. I have heard learned Counsel for the parties, perused the order impugned, copy of the complaint, copy of the application filed under Section 245(2) of the Criminal Procedure Code copy of the agreement and other documents. 4. Learned Counsel for the petitioner vehemently argued that in case of complaint under Section 138 of the Act, the complainant is required to show prima facie, the fact that the cheque has been for discharge of any debt or other liability legally enforceable, But in this case, respondent No.1 knowing well that the agreement not legally enforceable under the law has entered into agreement and when the agreement became unenforceable, he filed complaint against the petitioner under Section 138 of the Act, therefore, the cheque was not for discharge of any debt or other liability. 5. 5. On the other hand, learned Counsel for respondent No. 1 opposed the petition and submitted that on the basis of the material adduced on behalf of the complainant, the Court below has taken cognizance of the offence punishable under Section 138 of the Act, against the petitioner, however, the petitioner may redress his grievance at the time; of framing charge under Section 245(2) of the Criminal Procedure Code. 6. At the time of taking cognizance the Court is required to consider the material adduced on behalf of the complainant that whether the same is sufficient for taking cognizance or not, the Court is not required to consider the case of defence. But in appropriate cases, after taking cognizance of the of fence in warrant trial cases, the Court is empowered to discharge the accused at any previous stage of the case after recording the reasons, if it considers that charge would be framed on the basis of the material produced on behalf of the complainant under Section 245(2) of the Criminal Procedure Code. 7. Section 245(2) of the Criminal Procedure Code reads thus: "(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless." 8. The Court below has dismissed the application filed by the petitioner under Section 245(2) of the Criminal Procedure Code by specifically mentioning in the order impugned that the complainant may avail the opportunity at the stage of Section 245(1) of the Criminal Procedure Code after conclusion of evidence before charge of the complaint. The Court below has not committed any illegality in dismissing the application in absence of any, material filed on behalf of the petitioner. I do not find any scope of interference in terms of Section 482 of the Criminal Procedure Code The petition is, therefore, liable to be dismissed and it is hereby dismissed. Petition dismissed.