Order 7

Order Details: COPY OF ORDER
Pdf Text: CC No. 4015/2021
PERNOD RICARD INDIA PRIVATE LTD. V GLOW INFOCOM PRIVATE LIMITED
03.12.2022
1. Vide this order I shall dispose off the application filed under section 258 Cr.P.C, 1973 on behalf
of the accused no. 3 seeking stopping of proceedings and discharge. Ld. Counsel for the
complainant has opted not to file any reply to the same.
2. By way of this application the accused no. 3 has sought discharge primarily on the ground that he
is neither the signatory to the cheque in dispute nor actively involved in the day to day affairs of the
accused no. 1 company. It is further averred that there are no allegations against him in the
complaint.
3. Per contra, Ld. Counsel for the complainant submits that it is a settled position of law that this
court has no power to discharge. That when the court is bereft of such a power, there arises no
occasion to go into the merits of the case. Ld. Counsel has prayed for dismissal of the application as
not maintainable.
4. Arguments heard. Application perused.
5. The Hon’ble High Court of Delhi in Court on Its own Motion v. State Crl.Ref. 4/2019 (decided
on 20.04.2022) which was a reference seeking answer to this very question, “whether there exists a
power to discharge or not in the complaints filed u/s. 138 NI Act, 1881”. The Hon’ble High Court
after discussing the law laid down in Adalat Prasad v. Rooplal Jindal and Others, (2004) 7 SCC
338 and Subramanium Sethuraman v. State of Maharashtra and Another, (2004) 13 SCC 324 qua
the power of Magisterial Court to discharge, has held that:
“A plain reading of the paragraphs extracted hereinabove leaves no
manner of doubt that in terms of the judgment of the Hon’ble Supreme
Court in Adalat Prasad v. Rooplal Jindal and Others, (2004) 7 SCC
338 and Subramanium Sethuraman v. State of Maharashtra and
Another, (2004) 13 SCC 324, the Trial Court cannot be conferred with
inherent powers, either to review or recall the order of issuance of
process. As held in Adalat Prasad (supra) and Subramanium
Sethuraman (supra), the Magistrate is deluded with the power to revisit
the order of issue of process, except to the limited extent that the Court
has no jurisdiction to try the case. In other words, the Trial Court has
no inherent jurisdiction to revisit the order of issue of process within
the meaning of the provisions of Section 258 Cr.P.C. Further, it has
been clearly held that, in any event, the provisions of Section 258
Cr.P.C. are not applicable to complaints under Section 138 of the
Negotiable Instruments Act, 1881 (hereinafter referred to as ‘N.I.
Act’).........
The Court of a Magistrate does not have the power to discharge the
accused upon his appearance in Court in a summons trial case based
upon a complaint in general, and particularly in a case under Section
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138 of the N.I. Act, once cognizance has already been taken and
process issued under Section 204 Cr.P.C.”
6. Perusal of the law laid down in Court on Its own Motion (supra) leaves no room for any
ambiguity if power exists with the Trial Court to discharge in cases u/s. 138 NI Act. When the law
itself is clear and succinct, there arises no occasion to deal with the merits of the case in hand.
7. Therefore, in view of the aforementioned reasons and in light of the precedents, which have been
discussed above, this Court is of the considered opinion that the trial court does not have the power
to discharge an accused in a complaint case filed u/s 138 N.I. Act, 1881. In view of the same, the
present application filed by the accused no. 3 Akash Khilwani seeking discharge is disposed of as
dismissed.
(PADMA LANDOL)
MM (NI Act) Digital Court-03
New Delhi, PHC/Delhi/03.12.2022
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