^ COURT OF CHHATTISGARH AT BILA8PUR CR.IC.P. N0. 112/2008 APPLICAHT RESPOP^DENTS Narhari Tukaram Dhapodkar, age about 46 years, resident of plot No. 39, Omkar Nagar Road, Chintamani Nagari No. 3, Manewada Road, Nagpur Versus 2. Preetam Sadorm.al Chawla, age about 55 years, resident of Pandhari Raipur (CG) State of Chhattisgarh through Police Station Officer Pandhari, District Raipur (Chhattisgarh) CR.M.P. SBCT20M 482 OF THE CR.P,a ^Hon'ble T.PoSharmas J.] Present: Shri Shashikant Bork.ar, counsel for the petltioner. Shri Saryeev Kumar Agrawal, Panei Lawyer for the State. OB 7th I.A. N0. 01/2008. This is an application for exemption fi'om flling typed copies. The application is allo-wed. Counsel for the applicant is exenipted from filinR the same. This petition is directed against the order dated 21.Q6.2007 passed by the Judicial Magistrate First Class, Raipur in Cr. Case No.-441/2006 whereby the a.pplication for deletion of his name from the array of accused and for discharge was rejected on the ground that after taking cognizance against the applicant/accused No.2 by the Court under Chapter XX of the Cr.P.C., the Court is not competent to discha^rge the accused and they may get-remedy before the Kigh Court under Section 482 of the Code of Criminal Procedure, 1973. It reveais from the order impugned that cognizance for the offence punishable under Section 138 of the Negotiable Instrument Act was taken by the learned Judicial Magistrate First Class on the complaint filed by the non- applicant No, 1. The applicatiQn for discharge of the present applicant was disniissed on the sole ground that arter taking cognizance by the Magisrrate^ the Magistrafce is not competent to pass order of discharge under the provisicns of the Code. Cognizance has been taken on the basis of complaint. The proxdsions of Section 244 and 245 of the Code are applicable in the case of.warrant of trial. Provdsions under Section 245 of the Code are as follows: tiWhen ^hall be discharge- 1) if^ t^pon taking all the evidence re/erred to in section 244, Magistrate consider^ for ta be recorded^ no out whichy if would warrant conviction^ discharge him. 2} Nothing in section be to prevent a from discharging at premouB of ify for rea^ons to b-e by such he consicfers.the charge to be graundless. During the course of trial of the criminal case registered., on the baiss of that the Judicial Magistrate is competent to pass order of discharge under Sub Section 2 of Section 245 of the Code at any stage after recording reasons. But in case of summon trial after issuance of summons, the Court has no power to recall the process issued under Section 204 ofthe Cr.P.C. In case of VB. of & Another, 2005 Stiprefne Court Cases (Cri) 242^ it has been held by the Apex Court that after recording of plea under Section 252 of the Code of Criminal Procedure^ Court is not competent to discharge. the accused from summons case. It has been held in para 16 of thejudgment^ which reads as follows : "The challenge of learned for fe thefinding o/the High Caurt that a is recorcfed ir& a Bummons cas^ i$ is not open t^ accused person to seek a dischargcy cannot also te accepted. The case in^olving a sunifnons is by Chapter XX of which a of tike Section 239 which promde^ for a diacharge in a' warrant case. Therefore^ in our opinion Court was CQrrect in to the concluBion that once the plea of ia recorded under 2S2 of Codfe the procedure Chapter XX to befallowed which te &? the trial to ifs logfeal canclu^ion.^ In the instant case, cognizance has been taken on the complaint for the offence punishable undner Section 138 of the Negotiable Instrument Act in the summon trial. Copy of the order sheet shows that no particulars as required under Section 251 of the Code has been explained to the applicant and no plea as required under Section 252 ofthe Code is recorded. At the time of explaining the particulars of the offence under Section 251 of the Code and recording plea under Section 252 of the Code^ the applicant may agitate his claim before the Court on the basis of material available onrecord that further prosecution against the applicant is not justified and proper in the absence of ajiy prinia facie niaterial available on record. MtQr issuance of process under Section 204 of the Code, the Court is not competent to recall the process but the Court is competent to proceed under the provisions of Section 251 read with Section2 58 of the Code in appropriate cases. Consequently, the order impugned is set aside. The applicant is at liberty to avail the remedy before the trial Court at the appropriate stage. LA.No. 02/2008 application for grant of stay^ stands disposed of, Sugiina Sd/- T.P. Sharma Judge