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of <h1>Cheque dishonour complaint u/s138: accused can't be discharged after summons; discharge order set aside, trial restored.</h1> After issuance of process in a complaint under s. 138 NI Act, the Magistrate has no jurisdiction to discharge the accused by entertaining an application ... Dishonour of Cheque - jurisdiction to discharge the accused without exhausting the procedure contained in Chapter XX of the Code - requirement at law for impleading the Company as accused - authority of the Magistrate to discharge the accused in a case under Section 138 of the NI Act. HELD THAT:- A three-Judge bench of the Hon’ble Supreme Court in a case of Adalat Prasad Vrs. Rooplal Jindal & Ors. [2004 (8) TMI 647 - SUPREME COURT] held that after taking cognizance of the complaint and examining the complainant and the witnesses, if the Magistrate is satisfied that there is sufficient ground to proceed with the complaint, he can issue process by way of summons under Section 204 of the Code and thereafter there is no scope for the accused to approach the Court by making an application for dismissal of the complaint under Section 203 of the Code on reconsideration of the materials available on record as already the phase of taking decision under Section 203 by the Magistrate is already over. The learned Magistrate committed error in discharging the respondent No. 1 on his application filed challenging maintainability of the proceeding. Once the Magistrate has issued summons to him asking his appearance, said Court was to follow the procedure laid down in Chapter XX of the Code and to take the proceeding to its logical end. Therefore, the impugned order is liable to be set aside. The issue regarding the maintainability of the proceeding is concerned, the same is kept open to be decided by the learned trial Court at the time of final hearing of this case, since it is already held by this Court that the impugned order was passed by the said Court without having the jurisdiction to do so. The impugned order dated 03.12.2024 passed by learned Addl. Chief Judicial Magistrate, West Tripura, Agartala in case No. NI 51/2018 is hereby set aside. The original proceeding is restored to its file - petition allowed. 1. ISSUES PRESENTED AND CONSIDERED (i) Whether, after taking cognizance and issuing summons in a complaint under Section 138 of the Negotiable Instruments Act, the Magistrate has jurisdiction to entertain an application seeking 'discharge' on maintainability grounds and to terminate the proceeding without following the procedure under Chapter XX of the Code of Criminal Procedure. 2. ISSUE-WISE DETAILED ANALYSIS Issue (i): Magistrate's power to discharge/terminate proceedings after issuance of summons in a Section 138 complaint Legal framework (as discussed by the Court): The Court examined the scheme of Sections 200 to 204 of the Code of Criminal Procedure dealing with examination of complainant/witnesses, postponement of process, dismissal of complaint for lack of sufficient ground, and issuance of process. The Court further applied the binding position that, in summons cases governed by Chapter XX, there is no stage of 'discharge' akin to warrant-case discharge, and that trial must proceed in the manner prescribed once process has been issued. Interpretation and reasoning: The Court held that once the Magistrate has crossed the pre-process stage (including the decision-point under Section 203) and has issued summons under Section 204, the Magistrate cannot reconsider the same materials to terminate the case by 'discharging' the accused. The Court applied the settled position that trial courts have no inherent power to review or recall the issue of summons, and that Section 258 of the Code is not applicable to complaints under Section 138 of the Negotiable Instruments Act. Consequently, after issuance of summons, the Magistrate must follow the procedure under Chapter XX and take the proceeding to its logical conclusion, subject only to legally permissible situations (such as lack of jurisdiction) recognized by law. Conclusions: The Court conclusively determined that the Magistrate committed an error in allowing the accused's application and discharging him after summons had been issued. The impugned discharge order was therefore set aside, and the complaint was restored with a direction to proceed in accordance with law and to dispose of the matter expeditiously.
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