Madras High Court
Subramani vs K. Babu on 3 February, 2006
ORDER S. Sardar Zackria Hussain, J.
1. The revision petitioner is the sole accused in C.C. No. 43 of 2004 on the file of the Judicial Magistrate No. I Court, Udumalpet. The revision is directed against the dismissal of the discharge petition in Crl.M.P. No. 994 of 2004 filed under Section 204 Cr.P.C. The petition was dismissed as per the order dated 19.5.2004.
2. The petition Crl.M.P. No. 994 of 2004 is filed by the revision petitioner/accused that there have been material alteration in the cheque, which was issued by him to the complainant and as such, the cheque being invalid instrument, the complaint itself is not maintainable. The other ground taken is that the cheque has not been presented for collection within six months from the date of the cheque.
3. After enquiry, the petition was dismissed as per order dated 19.5.2004 recording finding that the alleged alteration in the cheque will not affect the case of the complainant filed on the basis of the dishonoured cheque and also recorded finding that the cheque was presented within six months from the date of issue of the cheque. The order is under challenge in this revision.
4. The learned counsel for the revision petitioner reiterating the stand taken in the discharge petition, submitted that the cheque has been materially altered and as such, the complaint is not maintainable. It is also submitted that the cheque has not been presented within six months from the date of the cheque.
5. The learned counsel for the respondent submitted that the discharge petition is not maintainable in view of the fact that the complaint was filed on the basis of the dishonoured cheque and the case being a summons case, the petition for discharge is not maintainable. In support of the view, the learned counsel for the respondent relied on the decision in G. Chandrasekaran v. C.R. Umapathy , in which this High Court held thus:-
Code of Criminal Procedure, 1973, Section 204. Negotiable Instruments Act, 1881, Section 138. Magistrate cannot recall process in complaint filed under Section 138, Negotiable Instruments Act in view of judgment of Apex Court in Adalat Prasad v. Rooplal Jindal and Ors. 2004 (4) CTC 698. Petition for discharge or for recalling summons is not maintainable.
6. In Subramanium Sethuraman v. State of Maharashtra , the Hon'ble Supreme Court held thus:-
...The case involving a summons case is covered by Chapter XX of the Code which does not contemplates a stage of discharge like Section 239 which provides for a discharge in a warrant case. Therefore, in our opinion the High Court was correct in coming to the conclusion once the plea of the accused is recorded under section 252 of the Code the Procedure contemplated under Chapter XX has to be followed which is to take the trial to its logical conclusion.
As observed by us in Adalat Prasad's case the only remedy available to an aggrieved accused to challenge an order in an interlocutory stage is the extraordinary remedy under section 482 of the Code and not by way of an application to recall the summon or to seek discharge which is not contemplated in the trial of a summons case.
7. The fact remains that the case in C.C. No. 43 of 2004 taken on file under Section 138 of Negotiable Instruments Act, being a summons case, the petition filed to discharge the accused is not maintainable as held in the decisions cited supra. The Judicial Magistrate is also recorded finding that the alleged material alteration in the cheque will not affect the case of the complainant and that the dishonoured cheque was presented within six months from the date of cheque.
8. Therefore, it is clear that inasmuch as the criminal case C.C. No. 43 of 2004 is a summons case and initiated under Section 138 of Negotiable Instruments Act, against the revision petitioner/accused, it is not open to the revision petitioner/accused to seek discharge and as such, there is no irregularity in the order of the trial Court in dismissing the petition.
9. In the result, the Criminal Revision Case is dismissed. The order dated 19.5.2004 passed in Crl.M.P. No. 994 of 2004 in C.C. No. 43 of 2004 by the Judicial Magistrate No. I, Udumalpet is confirmed.