Judgment 1. Heard. 2. Rule. Rule made returnable forthwith. Heard finally by consent of parties. 3. By this petition under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, the accused in Summary Criminal Case No.3624 of 2007 of the Court of 8th Judicial Magistrate First Class, Nagpur, assails the order dated 23.01.2013 passed by the said Court rejecting the application preferred by him for dismissal of the complaint. 4. Considering the short controversy involved in the matter, it appears wholly unnecessary to recite in detail regarding the said case except stating that upon the complaint made by the respondent of the petitioner having committed an offence punishable under Section 138 of the Negotiable Instruments Act, the process was issued against the petitioner and three more accused. It appears that the petitioner thereafter preferred an application Exh. 106 for dismissal of the said complaint on the count that he is not the Director of the Company i.e. the accused no.3 in the said case. 5. The part of the order to which the attention was drawn by the learned counsel for the petitioner reveals that the said order was passed before recording the plea of the petitioner. The impugned order reveals that the application was rejected by the trial Court on the count of the procedure to be followed for the said case was the procedure meant for summary cases and there was no provision for dismissal of the complaint after issuing of the process as after issuing the process it must end either in the acquittal or in the conviction. The order also reveals that the matter was fixed for recording the plea of the petitioner but it could not be recorded due to all the accused being not present. 6. All the aforesaid clearly reveals that the trial Court has not followed the procedure prescribed under the law. The reference to Section 262 of the Cr.P.C. read with Section 143 of the Negotiable Instruments Act reveals that the trial Court was bound to follow the procedure for summary cases prescribed under the Code and further by virtue of Section 262 of the Cr.P.C. was bound to follow the procedure meant for summons cases as prescribed under the Code. The reference to Section 262 of the Cr.P.C. read with Section 143 of the Negotiable Instruments Act reveals that the trial Court was bound to follow the procedure for summary cases prescribed under the Code and further by virtue of Section 262 of the Cr.P.C. was bound to follow the procedure meant for summons cases as prescribed under the Code. In the said context, the reference to Section 251 of the Cr.P.C. prescribed in the said Code and the one which reads as under:- “When in a summons-case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge.” and particularly the emphasized portion from it “whether he pleads guilty or has any defence to make”, contemplates the trial Court was bound to hear the petitioner at the time of explaining accusation to him. The said wording denotes that the petitioner has right to tell about his defence to the Court at the said stage and the Court has to take into consideration the same while explaining the accusation to the said accused. The order impugned in no uncertain terms reveals that the stage of explaining the accusation is not over. 7. Having regard to the same, the order passed by the trial Court cannot be legally sustained and hence liable to be and accordingly hereby quashed and set aside and the matter is relegated back to the trial Court for deciding the application at Exh. 106 in accordance with the law. With regard to the observation made in the said order, that the accused are not remaining present for the said stage, it will be necessary to observe that in such contingency trial Court should take recourse to necessary provisions for enforcing attendance of the said accused i.e. for meeting such situation arising. 8. Rule made absolute in the aforesaid terms.