SAINT-GOBAIN DIAMANT WINTER LTD. Vs. JAGDAMBA MARBLES

JUDGEMENT

(1.) THIS appeal has been preferred against the order of learned Metropolitan Magistrate dated 26th March, 2004 whereby the learned MM recalled its summoning order dated 16th July, 2001 asking the accused persons to face the trial under Section 138 of Negotiable Instruments Act (for short 'the Act'), on an application under Section 245 Cr. P.C. moved by the accused persons. Section 245 Cr. PC. reads as under :

(2.) A bare reading of above two sections make it abundantly clear that Section 245 can be invoked only where the Magistrate had taken all evidence as is produced before it in support of prosecution and upon taking all evidence, no case was made out against the accused. Section 245 cannot be invoked without recording evidence as envisaged under Section 244. Strangely enough, the learned MM passed an order under Section 245 Cr. PC. without recording evidence as required under Section 244. The order is, therefore, not sustainable in the eyes of law. The learned MM could not have recalled the summoning order, even otherwise, in view of the Judgment of the Supreme court in Adalat Prasad v. Rooplal Jindal, JT 2004 (7) SC 243.