JUDGMENT Rajendra Kumar Srivastava, J. - Petitioner-Accused has filed this criminal revision under Section 397/401 of Cr.P.C. to set-aside the order dated 11.09.2014 passed by learned 3rd Additional Session Judge, Raisen in criminal revision No. 68/14 whereby learned Sessions Judge allowed the revision presented by respondent-complainant and made direction to take cognizance under Section 420 of IPC against the petitioner-accused according to law and also to take cognizance under Section 120-B read with Section 420 of IPC against one Santosh Malviya. 2. The prosecution story in short is that respondent- complainant filed a complaint under Section 138 read with Section 142 of Negotiable Instrument Act. It is alleged by the respondent-complainant that he sold agricultural produce to the petitioner-accused in lieu of which, the petitioner-accused gave cash amount of Rs. 12,500/- to the complainant-respondent and further issued a cheque worth of Rs. 9,00,000/- bearing cheque no. 011733 of ICICI Bank Branch- Raisen dated 20.02.2012. The said cheque was deposited by complainant-respondent in the Bank but the same was returned on 29.02.2012 with an endorsement of insufficiency of funds. Thereafter complainant-respondent issued statutory notice which was received by the petitioner-accused but petitioner-accused did not deposit amount then complainant respondent filed a criminal complaint under Section 138 of Negotiable Instruments Act. Petitioner-accused appeared before the trial court. Both parties adduced evidence. Petitioner-accused also produced Mr. Devesh Nayani- Assistant Manager, I.C.I.C.I. Bank Branch Raisen. He deposed before the trial court that disputed cheque and concerned cheque book was issued by the Bank in favour of one Santosh Malviya, thereafter Santosh Malviya cancelled the cheque. Thereafter, respondent-complainant filed an application under Section 216 of Cr.P.C. for framing additional charges against the petitioner-accused under Sections 120-B, 420, 467, 468 and 471 of IPC and also filed an application under Section 319 of Cr.P.C. for impleading Santosh Malviya as an additional accused. Learned trial court dismissed this application and held that complainant-respondent cannot be allowed to construct a new case on the basis of the evidence adduced by the petitioner-accused during the course of trial. There is no evidence on record to give a conclusion that any document has been forged or fabricated. 3. Thereafter, respondent-complainant filed a revision before Additional Sessions Judge, Raisen. There is no evidence on record to give a conclusion that any document has been forged or fabricated. 3. Thereafter, respondent-complainant filed a revision before Additional Sessions Judge, Raisen. Additional Sessions Judge, Raisen allowed the revision presented by the respondent-complainant and it was held that petitioner-accused cheated the complainant-respondent by giving a cheque from another person i.e. Santosh Malviya and Santosh Malviya also gave his cancelled cheque to the present petitioner-accused to cheat the respondent-complainant, so prima facie case is made out under Section 420 of IPC against the petitioner and Section 120-B & 420 of IPC against one Santosh Malviya and trial court is directed to take cognizance against the present petitioner and Santosh Malviya according to law. 4. Learned counsel for the petitioner-accused submits that learned revisional court passed the order without jurisdiction. It was not the case of complainant-respondent that petitioner-accused along with other proposed co-accused had issued cheque in his name nor his case was that cheque was forged to cheat him so no case under Section 420 read with 120-B of IPC is made when the cheque is dishonoured due to insufficiency of fund. There is no intention to defraud the complainant-respondent and in fact the proceedings under Section 138 of N.I. Act is completely different from proceedings under Sections 420, 467, 468 of IPC. There is no evidence available on record to establish any connection or connivance between the present petitioner and Santosh Malviya. On the contrary bare perusal of testimony of defence witnesses leaves no room for doubt that in fact there was no legal liability of the petitioner-accused to pay any amount to the complainant-respondent but complainant-respondent tried to construct a new case which is impermissible in the eyes of law. Complainant has exhaustively cross-examined the defence witnesses and at the fag end of trial when the matter was posted for final arguments, the applicant under Section 319 & 216 of Cr.P.C. have been filed to construct a new case. So revisional court has interfered the well reasoned order passed by the trial court. So prima-facie illegality committed by learned revisional court is apparent on the face of record, the impugned order be granted. Learned counsel for petitioner-accused cited the following judgments:- i) Vir Prakash Sharma Vs. Anil Kumar Agarwal and another, 2007 SCC 373 . ii) Rajendra Rajoriya Vs. Jagat Narain Thapak and another, (2018) 17 SCC 234 . So prima-facie illegality committed by learned revisional court is apparent on the face of record, the impugned order be granted. Learned counsel for petitioner-accused cited the following judgments:- i) Vir Prakash Sharma Vs. Anil Kumar Agarwal and another, 2007 SCC 373 . ii) Rajendra Rajoriya Vs. Jagat Narain Thapak and another, (2018) 17 SCC 234 . iii) Sarojben Ashwinkumar Shah and others Vs. State of Gujarat and another, (2011) 13 SCC 316 . iv) Shivcharan VS. Jahid Khan passed in M.Cr.C. No. 5130/2019 dated 09.05.2019. 5. Learned counsel counsel for the respondent-complainant submits that revisional court has revisional powers so learned revisional court is very competent and has jurisdiction to pass such order. There is no perversity or illegality in the impugned order so revision be dismissed. In support of his contention learned counsel for respondent-complainant cited the judgment of High Court of Madras in the case of N. Anbarasu Vs. M. Ganesan,2006 11 Lsws(Mad) 164 and judgment in the case of Tulsi Ram VS. Phoolwati, 2013 4 MPLJ 85 . 6. Heard both the parties and perused the record. 7. Firstly it would be appropriate to determine the scope of criminal revision under Section 397 and 398 of Cr.P.C. Hon'ble Supreme Court in the case of Rajendra Rajoriya VS. Jagat Narain Thapak and another, (2018) 17 SCC 234 has held as under:- 11. At the outset, before we decide the legality of the remand order, we are required to determine the scope of criminal revision under Section 397 read with Section 398 of Cr.P.C. It would be appropriate to reproduce Sections 397 and 398 of Cr.P.C herein. Section 397. Calling for records to exercise powers of revision. (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order,- recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation- All Magistrates whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 398. Section 398. Power to order inquiry. On examining any record under section 397 or otherwise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrates subordinate to him to make, and the Chief Judicial Magistrate may himself make or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under section 203 of Sub-Section (4) of section 204 or into the case of any person accused of an offence who has been discharged: Provided that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made. 12. A perusal of the aforesaid provisions portray that the revisionary power is exercised either by the Sessions Court or by the High Court and a dismissal of the complaint by the Magistrate under Section 203 of Cr.P.C may be assailed in a criminal revision under Section 397 of Cr.P.C. The ambit of revisional jurisdiction is well settled. Section 397 of Cr.P.C empowers the Sessions Judge to call for and examine the record of any proceeding before any subordinate criminal court situate within its jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such subordinate Court. 13. The extent of the revisionary powers inter alia, is provided under Section 399 read with Section 401 of Cr.P.C. It is clear from the aforesaid provisions that Section 398 has to be read along with other Sections which are equally applicable to the revision petitions filed before the Sessions Court. Section 398 only deals with a distinct power to direct further inquiry, whereas Section 397 read with Section 399 and Section 401 confers power on the revisionary authority to examine correctness, legality or propriety of any findings, sentence or order. The powers of the revisionary court have to be cumulatively understood in consonance with Sections 398, 399 and 401 of Cr.P.C. 14. The powers of the revisionary court have to be cumulatively understood in consonance with Sections 398, 399 and 401 of Cr.P.C. 14. We may note that the High Court, in the impugned judgment, came to an erroneous conclusion that the Sessions Court had itself taken cognizance of the matter which may be reproduced as under- "On bare perusal of this provision it is clear that the impugned order cannot be passed under Section 398 of the Code. The word 'may direct' has been used by the legislation in this provision. It gives wide discretion to the court to order further enquiry. Sessions Court has no power to take cognizance of the offence, assess the offence and reach its own conclusion whether there is ground for proceeding with complaint or not and further to direct a Magistrate with regard to registration of a complaint on finding a prima facie case". 15. On a perusal of the Sessions Court judgment (quoted supra), we are of the opinion that the Sessions Court did not pass an order taking cognizance. The Sessions Court order should have been construed only as a remand order for further enquiry. The observations made by the Sessions Court were only justification for a remand and the same did not amount to taking cognizance. In view of the above, the High Court clearly misconstrued the Sessions Court order and proceeded on an erroneous footing. On the other hand, the revisional court was also in error to the extent of influencing the Magistrate Court to keep the findings of Sessions Court in mind, while considering the case on remand. The misconception created before the High Court was due to the fact that the remand order provided discretion for the trial court to conduct further enquiry and thereafter consider issuing process. The High Court in the case at hand without appreciating the dichotomy between taking cognizance and issuing summons, quashed the complaint itself on wrong interpretation of law. In the light of the above, the impugned order of the High court cannot be sustained in the eyes of law. 8. It would also appropriate to consider the scope of Section 319 of Cr.P.C. Hon'ble Supreme Court in the case of Sarojben Ashwinkumar Shah and others Vs. State of Gujarat and another, (2011) 13 SCC 316 has held as under:- "16. 8. It would also appropriate to consider the scope of Section 319 of Cr.P.C. Hon'ble Supreme Court in the case of Sarojben Ashwinkumar Shah and others Vs. State of Gujarat and another, (2011) 13 SCC 316 has held as under:- "16. The legal position that can be culled out from the material provisions of Section 319 of the Code and the decided cases of this Court is this : (i) The Court can exercise the power conferred on it under Section 319 of the Code suo motu or on an application by someone. (ii) The power conferred under Section 319(1) applies to all courts including the Sessions Court. (iii) The phrase "any person not being the accused" occurring in Section 319 does not exclude from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in Column 2 of the charge-sheet. In other words, the said expression covers any person who is not being tried already by the court and would include person or persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the court. (iv) The power to proceed against any person, not being the accused before the court, must be exercised only where there appears during inquiry or trial sufficient evidence indicating his involvement in the offence as an accused and not otherwise. The word 'evidence' in Section 319 contemplates the evidence of witnesses given in court in the inquiry or trial. The court cannot add persons as accused on the basis of materials available in the charge- sheet or the case diary but must be based on the evidence adduced before it. In other words, the court must be satisfied that a case for addition of persons as accused, not being the accused before it, has been made out on the additional evidence let in before it. (v) The power conferred upon the court is although discretionary but is not to be exercised in a routine manner. In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on record which sufficiently establishes that the other person has committed an offence. A mere doubt about involvement of the other person on the basis of the evidence let in before the court is not enough. In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on record which sufficiently establishes that the other person has committed an offence. A mere doubt about involvement of the other person on the basis of the evidence let in before the court is not enough. The Court must also be satisfied that circumstances justify and warrant that other person be tried with the already arraigned accused. (vi) The court while exercising its power under Section 319 of the Code must keep in view full conspectus of the case including the stage at which the trial has proceeded already and the quantum of evidence collected till then. (vii) Regard must also be had by the court to the constraints imposed in Section 319 (4) that proceedings in respect of newly - added persons shall be commenced afresh from the beginning of the trial. (viii) The court must, therefore, appropriately consider the above aspects and then exercise its judicial discretion. 17. Now, if the order of the High Court is seen, it would transpire that after noticing the provisions contained in Section 319 and its scope, the High Court proceeded to hold that the order of the Magistrate did not call for any interference. The High Court, however, failed to consider whether Magistrate has addressed to the essential aspects before invoking his power under Section 319 of the Code. Moreover, the High Court did not advert to the question whether or not filing of copy of registration of the firm by Accused Nos. 2 and 3 would be covered by expressions 'in the course of any inquiry into or trial' and 'evidence' occurring in Section 319 of the Code and also the aspect as to whether such document could be treated as an evidence to show that the appellant (newly added accused) has committed an offence of cheating under Section 420 IPC. As regards the criminal liability of a partner in the firm, in light of the provisions contained in Section 141 of the N.I. Act, there has to be evidence that at the time the offence was committed, the partner was in-charge of and was responsible to the firm for the conduct of the business of the firm." 9. As regards the criminal liability of a partner in the firm, in light of the provisions contained in Section 141 of the N.I. Act, there has to be evidence that at the time the offence was committed, the partner was in-charge of and was responsible to the firm for the conduct of the business of the firm." 9. In the instant case it is admitted fact that complainant respondent filed criminal complaint under Section 200 & 202 to initiate the proceedings against the petitioner accused under Section 138 read with Section 142 of NI Act. Learned trial court took cognizance under Section 138 of Negotiable Instrument Act against the petitioner accused. Thereafter petitioner accused appeared before the trial court. He adduced his evidence. The statement of accused was recorded. Petitioner-accused adduced defence witness. He also produced defence witness Mr. Devesh Nayani- Assistant Manager, I.C.I.C.I. Bank Branch Raisen. He deposed before the trial court that disputed cheque No. 011733 and concerned cheque book was issued by the Bank in favour of one account holder Santosh Malviya. Disputed cheque was dishonoured on three grounds. First ground difference of signature of disputed cheque, second insufficient fund and third disputed cheque already cancelled, then respondent-complainant filed an application under Section 216 of Cr.P.C. for framing additional charges against he petitioner-accused under Sections 120-B, 420, 467, 468 and 471 of IPC and also filed an application under Section 319 of Cr.P.C. for impleading Santosh Malviya as an additional accused. Learned trial court dismissed this application and held that complainant-respondent cannot be allowed to construct a new case on the basis of the evidence adduced by the petitioner-accused during the course of trial. There is no evidence on record to give a conclusion that any document has been forged or fabricated. Thereafter, respondent-complainant filed a revision before Additional Sessions Judge, Raisen. Additional Sessions Judge, Raisen allowed the revision presented by the respondent-complainant and it was held that petitioner-accused cheated the complainant-respondent by giving a cheque from another person i.e. Santosh Malviya and Santosh Malviya also gave his cancelled cheque to the present petitioner-accused to cheat the respondent- complainant, so prima facie case is made out under Section 420 of IPC against the petitioner and Section 120-B & 420 of IPC against one Santosh Malviya and trial court is directed to take cognizance against the present petitioner and Santosh Malviya according to law. The order passed by learned Additional Sessions Judge reads as under:- 10. So it is evident that learned revisional court directed the trial court to take cognizance against the petitioner-accused and thereafter frame charges and also take cognizance against proposed accused Santosh Malviya. It is evident that Section 138 of NI Act is summon trial and Section 420 of IPC is warrant trial. The trial court is very competent to take cognizance under Section 420 of IPC after inquiry which is prescribed under Section 200 of Cr.P.C. The procedure proscribed of warrant trial instituted otherwise then to police report, in Cr.P.C. Section 244 and 245 of Cr.P.C. reads as under:- Section 244 in The Code Of Criminal Procedure, 1973 244. Evidence for prosecution. (1) When, in any warrant- case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. (2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing. Section 245 in The Code Of Criminal Procedure, 1973 245. When accused shall be discharged. (1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. (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." It is evident from the aforesaid sections that before framing of charge complainant respondent will produce all the prosecution evidence and after considering the evidence, trial court is competent to discharge the accused for charges but learned revisional court directed to frame the charge, so prima facie the order of revisional court is erroneous. 11. It is not disputed that offence under Section 420 of IPC is maintainable in lieu of pendency of proceeding under Section138 of NI Act. Plea of double jeopardy on the ground that appellant was convicted under Section 138 of NI Act is not tenable. 11. It is not disputed that offence under Section 420 of IPC is maintainable in lieu of pendency of proceeding under Section138 of NI Act. Plea of double jeopardy on the ground that appellant was convicted under Section 138 of NI Act is not tenable. Hon'ble Supreme Court in the case of Sangeetaben Mahendrabhai Patel Vs. State of Gujarat and another, (2012) 7 SCC 621 has held as under:- "37. Admittedly, the appellant had been tried earlier for the offences punishable under the provisions of Section 138 N.I. Act and the case is sub judice before the High Court. In the instant case, he is involved under Sections 406/420 read with Section 114 IPC. In the prosecution under Section 138 N.I. Act, the mens rea i.e. fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved. However, in the case under IPC involved herein, the issue of mens rea may be relevant. The offence punishable under Section 420 IPC is a serious one as the sentence of 7 years can be imposed. 38. In the case under N.I. Act, there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can be rebutted only by the person who draws the cheque. Such a requirement is not there in the offences under IPC. In the case under N.I. Act, if a fine is imposed, it is to be adjusted to meet the legally enforceable liability. There cannot be such a requirement in the offences under IPC. The case under N.I. Act can only be initiated by filing a complaint. However, in a case under the IPC such a condition is not necessary. 39. There may be some overlapping of facts in both the cases but ingredients of offences are entirely different. Thus, the subsequent case is not barred by any of the aforesaid statutory provisions." 12. In this view of the matter, if any offence is committed by the petitioner-accused for IPC then complainant respondent is very competent to initiate separate proceeding under IPC against the petitioner-accused and another. Thus, the subsequent case is not barred by any of the aforesaid statutory provisions." 12. In this view of the matter, if any offence is committed by the petitioner-accused for IPC then complainant respondent is very competent to initiate separate proceeding under IPC against the petitioner-accused and another. It is clear from the record that complainant respondent-complainant did not allege any fact against Santosh Malviya in his complaint under Section 138 of NI Act and during his evidence before trial court any witness did not allege any fact against Santosh Malviya, so it is not proper to implead Santosh Malviya as an accused under Section 319 of Cr.P.C. If Santosh Malviya is added as an additional accused there would be denovo trial. It is admitted fact that his case is fixed for final arguments since 2014, so in these circumstances when the complainant-respondent did not allege any act of cheating in his complaint and his evidence so it would not be appropriate to start denovo trial. It is made clear that if any offence is committed by the petitioner-accused and other then complainant-respondent is free to initiate separate legal proceeding against petitioner-accused and other under Indian Penal Code. So in view of the aforesaid discussion, learned revisional court erred in passing the impugned order. So interference is warranted. 13. Accordingly, criminal revision is allowed. The impugned order dated 11.09.2014 passed by learned 3rd Additional Session Judge, Raisen in criminal revision No. 68/14 whereby learned Sessions Judge allowed the revision presented by respondent-complainant and directed to take cognizance under Section 420 of IPC against the petitioner-accused according to law and also to take cognizance under Section 120-B read with Section 420 of IPC against one Santosh Malviya is hereby set-aside. Certified copy as per rules.