V.K. Bist, J. -
(1.) THIS appeal, preferred under Section 374(4) of the Code of Criminal Procedure, 1973 (for brevity Cr.P.C.), is directed against the judgment and order dated 02.08.2004 passed by Special Judicial Magistrate IInd, Dehradun in Criminal Case No. 3205 of 2003 under Section 138 of Negotiable Instruments Act (hereinafter referred as to the Act), whereby the learned Court below allowed the objection filed by the opposite party No. 2, Ram Nath Tewari and discharged him from the offence. Brief facts, leading to filing of this appeal, are that the complainant/appellant filed a Complaint Case No. 3205 of 2093 before the Court below with the assertion that the opposite party No. 2 issued a cheque bearing No. 037715 dated 30.06.2000 amounting to Rs. 78.000/ - of State Bank of India, Main Branch, Dehradun in lieu of mutual exchange, with the assurance that the cheque will be encashed. However, when the cheque was produced in State Bank of India, Tel Bhawan, Dehradun on 14.07.2000 in order to credit the sum in the account of the complainant, the same was dishonoured by the Bank due to insufficient fund in the account of the accused/opposite party. In this regard, the complainant sent registered notice to the opposite party through his Advocate on 27.07.2000 asking him to pay within fifteen days the sum of Rs. 78,000/ - including interest and the expenditure towards the notice, however the opposite party refused to take the notice. It was averred in the complaint that despite making demand personally, inasmuch as informing repeatedly, no payment was made by the accused/respondent No. 2. Before the Court below, the complainant examined himself under Section 200 Cr.P.C. and in support of his contention he also produced documentary evidence before the trial Court. Being satisfied that a prima -facie case is made out against the opposite party, the trial Court vide order dated 01.12.2000 summoned the accused/respondent No. 2 under the Act. Feeling aggrieved with the summoning order the opposite party appeared before the trial Court and protested the summoning order by filing objection and stated that the matter in issue is civil in nature. He denied service of any notice upon him sent by the complainant with the assertion that he would have replied the notice, in case it would have served upon him and in absence of service of notice, entire proceeding of complaint case is bad in the eyes of law. He assailed the impugned summoning order on the ground that the complainant intentionally concealed the real facts, as the opposite party issued two cheques i.e. cheque No. 037715 dated 30.06.2000 for a sum of Rs. 78,000/ - and another cheque No. 037714 dated 31.05.2000 for a sum of Rs. 35,000/ - in favour of the complainant in lieu of the compromise dated 06.05.2000, which was executed in presence of the witnesses in between him and the complainant, according to which after encashment of the cheque dated 31.05.2000 amounting to Rs. 35,000/ - and cheque dated 30.06.2000 amounting to Rs. 78,000/ - the complainant had to proceed for legal recourse so that, according to the compromise, the land would be transferred in favour of the opposite party. He asserted that though cheque No. 037714 was honoured; but cheque No. 037715 could not be encashed due to financial crises of respondent No. 2 for which the complainant was duly informed. He further asserted that complainant had to execute sale deed in favour of the opposite party, as stipulated in the compromise, but the condition contained in the compromise was not satisfied, hence no offence under the Act is made out against the opposite party. The trial Court, being satisfied with the protest objection, vide impugned order dated 02.08.2004 recalled its own summoning order dated 01.12.2000. Feeling aggrieved with this order, the complainant has filed instant appeal.
(2.) I have heard Mr. R.P. Nautiyal, Advocate for the appellant, Mrs. Mamta Bisht, A.G.A. for the State, Mr. Rajendra Kotiyal, Advocate for respondent No. 2 and perused the record. Learned counsel for the appellant argued that no provision is contained under the Criminal Procedure Code against, the order passed under Section 204 Cr.P.C., which would empower the trial Court to recall or set -aside the order passed on the basis of statement tendered by the complainant and his witnesses under Section 200 and 202 Cr.P.C. and the documentary evidence produced by the Complainant before the Court. He contends that because after considering the evidence produced under Section 200 and 202 Cr.P.C., a prima -facie case was made out and the accused/respondent No. 2 appeared before the trial Court; the trial Court proceeded further in the matter, then there is no provision of law to set -aside the earlier order of taking cognizance and acquit the accused/respondent No. 2 without providing any opportunity to the appellant to adduce his entire evidence. He further contended that there is clear provision under the Code of Criminal Procedure that after taking cognizance, when the accused appears, his statement under Section 251 Cr.P.C. should have been recorded, but without recording such statement, the learned trial Court set -aside its earlier summoning order. He further contended that the order impugned suffers from illegality, as the trial Court neither acquitted the accused/opposite party nor discharged him, but he merely set -aside the summoning order and discharged the sureties. He contended that the only option to the trial Court was to acquit the accused, that also after completing the whole trial. Learned counsel for the appellant relied on the judgment of Apex Court, reported in : 2004 (6) Supreme 662 : 2004 (6) 371 : (2004) 7 SCC 338.
(3.) ON the other hand, learned counsel for respondent No. 2 submitted that, for the same cause of action, the complainant has availed parallel remedies by filing complaint case as well as criminal case under Section 420 I.P.C. He contended that in such cases, if an offence is committed, two parallel remedies i.e. under Section 138 of the Act and that of under Section 420 I.P.C. could not be proceed simultaneously. He submitted that there was an agreement in between the parties in respect of execution of sale deed and two cheques i.e. cheque No. 037715 dated 30.06.2000 for a sum of Rs. 78,000/ - and another cheque No. 037714 dated 31.05.2000 for a sum of Rs. 35,000/ - were issued in favour of the complainant but the condition contained in the compromise was not fulfilled, hence no offence under the Act is made out against the opposite party. He vehemently argued that the matter in issue before the Court below was purely civil in nature and only legal recourse available to the complainant was to file suit in respect of breach of contract, which was not availed. Learned counsel for the respondent No. 2 further argued that before the verdict in Adalat Prasad vs. Hoop Lal Jindal, reported in : 2004 (6) Supreme 371, the Magistrate was fully empowered to recall its order passed under Section 204 Cr.P.C., and verdict of the judgment of Hon'ble Apex Court shall not have any retrospective effect, therefore, the trial Court has rightly recalled its previous order summoning the opposite party to appear before him for which the trial Court was fully empowered to do so, at that very point of time. Learned counsel for the respondent No. 2 further contended that so far the complaint case is concerned, under the law, an appeal shall lie only when the accused has been acquitted from the charges, but no appeal shall lie against the orders where the accused has been discharged, as has been done in the case in hand, therefore no appeal is maintainable. He lastly contended that there is no provision contained under the law against the discharge order passed rightly or wrongly, however the alternative remedy available to the complainant was to file revision before the Revisional Court i.e. District & Sessions Judge concerned.;