Gopal Krishan Vyas, J. - (1.) By way of this criminal misc. petition under Section 482, CrPC, the petitioner has challenged the order dated 15.03.2004 passed by Additional Chief Judicial Magistrate, Didwana (Nagaur) in NIA Case No. 61-A/2004 as well as the order dated 16.09.2005 passed by Additional Sessions Judge, Didwana in Revision Petition No. 09/2005.
(2.) It is contended by the Counsel for the petitioner that the learned trial Court has taken cognizance against the petitioner without considering the fact as well as the position of law. The allegations for issuing cheques is upon Sadul Singh and not upon the petitioner. In the complaint filed by the complainant Prema Ram, statement under Sections 200 and 202, CrPC were recorded and upon perusal of the complaint as well as statement, cognizance was taken against the petitioner and other accused. It is further contended that a bare perusal of the complaint and the statement shows that there is no allegation against the petitioner, therefore, in accordance with Section 138 of the Negotiable Instruments Act, the cognizance taken against the petitioner is illegal and there is no evidence against the petitioner for committing offence under Section 138 Negotiable Instruments Act. It is also contended that the learned trial Court discharged the petitioner for offence under Section 420, IPC as such the order of taking cognizance is illegal and contrary to law. Further it is contended that against that order, a revision petition was preferred, which was also dismissed by the revisional Court while holding that the revision is not maintainable and the petitioner is having right to agitate the matter before the learned trial Court. It was also observed in the order passed by the revisional Court that it is the duty of the trial Court to decide sthe objections raised by the petitioners against the cognizance after hearing both the parties.
(3.) Learned Counsel for the petitioner invited the attention of this Court towards the judgment rendered by Apex Court in case of Adalat Prasad v. Rooplal Jindal & Ors. While citing the aforesaid judgment, learned Counsel for the petitioner has invited the attention of this Court towards Para Nos. 8 and 15 of the said judgment, which reads as follows:- "8. It is thus seen that in Mathew case this Court held that after issuance of summons under Section 204 of the Code, it was open to the Magistrate on being satisfied at the instance of the summoned accused to reconsider its decision of issuing summons under Section 204. This Court in that case also held that the Magistrate issuing the summons can do so only on there being material to issue summons hence the summons erroneously issued can be recalled by the Magistrate for which no specific provision is required." "15. It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provisions of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence, in the absence of any review power or inherent power with the subordinate criminal Courts, the remedy lies in invoking Section 482 of the Code.";