G. Chandrasekaran vs C.R. Umapathy

C. Nagappan, J.—The petitioner in both the revision cases is one and the same person and similarly, the respondent in both the cases is also

the same person.

The petitioner filed two complaints u/s 138 of Negotiable Instruments Act against the respondent herein and both the complaints were taken on

file in STR.Nos.9689/1999 and 9688/1999 by the Judicial Magistrate No.II, Pondicherry.

The respondent/accused filed two petitions in Crl.M.P.No.423/2003 and Crl.M.P.No.422/2003 respectively under Sections 245 and 203 of

Code of Criminal Procedure seeking for discharge and they were opposed by filing counter. The learned Judicial Magistrate No.II, Pondicherry,

by common order, dated 7.8.2003, allowed the petitions and discharged the respondent herein of the offence u/s 138 of Negotiable Instruments

Act in terms of Section 245 Cr.P.C. Challenging that order, the complainant has preferred these revisions.

The learned counsel for the petitioner contends that the petitions for discharge, purportedly filed u/s 245 and 203 Cr.P.C, are prima facie not

maintainable under law and the trial Court has grossly erred in discharging the accused by looking into the documents which have not been

tendered in evidence and proved in a manner known to law.

Per contra, the learned counsel for the respondent contends that the order of discharge has been made on the basis of documents produced by

the respondent/accused.

The offence u/s 138 of Negotiable Instruments Act is punishable with imprisonment, which may extend to two years or with fine or with both

and it is a summons-case. The petitions seeking for discharge of the accused were filed under Sections 245 and 203 Cr.P.C. Chapter XIX of

Code of Criminal Procedure deals with trial of warrant-cases by Magistrates and Sections 238 to 243 Cr.P.C relate to cases instituted on a police

report and Sections 244 to 247 Cr.P.C relate to cases instituted otherwise than on police report.

Section 245 Cr.P.C provides for discharge of the accused if no case against the accused has been made out upon taking all the evidence for

prosecution in a warrant-case otherwise than on a police report. The said provision is not applicable to a case relating to an offence u/s 138 of

Negotiable Instruments Act, since it is a summons case and the petitions for discharge, filed in the present cases, u/s 245 Cr.P.C are not

maintainable.

The power u/s 203 Cr.P.C has also been invoked in the discharge petitions. During initiation of proceedings, the Magistrate can take cognizance

of offences in any one of the three modes mentioned u/s 190(1) Cr.P.C, namely, a) upon receiving a complaint of facts b) upon a police report of

such facts and c) upon information received from any other person or upon his own knowledge that such offence has been committed. ""Complaint

is defined u/s 2(d) as allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code and ""police report"" is

defined u/s 2(r) as a report forwarded by a police officer to a Magistrate under sub-section (2) of Section 173 Cr.P.C. The complaint of facts

referred to in Section 190(1)(a) Cr.P.C is dealt with in Chapter XV under Sections 200 to 203 Cr.P.C.

Section 200 Cr.P.C contemplates examination of complainant and the witnesses by the Magistrate while taking cognizance of an offence on

complaint and Section 202 Cr.P.C contemplates postponement of issue of process against the accused if the Magistrate thinks it fit to inquire into

the case by himself or direct an investigation to be made by a police officer for the purpose of deciding whether or not there is sufficient ground for

proceeding and after such investigation or inquiry, if the Magistrate finds no sufficient ground for proceeding, he can dismiss the complaint by

recording the reasons u/s 203 of the Code.

If there is sufficient ground for proceeding, the Magistrate shall take cognizance of offences in any one of the three modes referred to supra and

he shall issue process by way of summons u/s 204 of the Code if it is a summons-case or shall issue a warrant if it is a warrant-case and in none of

the above stages, the accused is heard. To put it in other words, in whatever mode the cognizance of offence is taken by the Magistrate, the

process can be issued only u/s 204 of the Code.

Chapter XX of Cr.P.C deals with trial of summons-cases by the Magistrate under Sections 251 to 259 Cr.P.C and it is relevant to note that

no provision to discharge the accused is provided. Only u/s 258 Cr.P.C, the power to stop proceedings in certain cases is provided and that is

limited to summons-case instituted otherwise than upon complaint, that is, the cases mentioned in Section 190(1)(b) and (c), in which, cognizance

is taken upon a police report or upon other information or own knowledge of the Magistrate. Hence, the power u/s 258 Cr.P.C cannot be invoked

in any summons-case instituted on a complaint of facts, which is stipulated in Section 190(1)(a) Cr.P.C. The proceedings u/s 138 of Negotiable

Instruments Act, being a summons-case, instituted on a complaint, cannot be stopped by invoking the power u/s 258 Cr.P.C. In short, there is no

provision providing for discharge of the accused in a summons-case and there is no power to stop proceedings invoking the power u/s 258 of the

Code.

The Supreme Court, in the Judgment in the case of K.M. Mathew Vs. State of Kerala and another, held that no specific provision is required

for the Magistrate to drop the proceedings or rescind the process in a summons-case and process already issued is no bar to drop the

proceedings, if the complaint on the very face of it does not disclose any offence against the accused. In other words, in the above decision, it was

held that after issuance of summons u/s 204 of the Code it was open to the Magistrate at the instance of summoned accused to reconsider his

decision of issuing summons u/s 204 and the summons erroneously issued can be re-called by the Magistrate, for which no specific provision is

required.

The learned counsel for the petitioner brings to the notice of this Court the very latest decision of the Supreme Court in the case in Adalat

Prasad Vs. Rooplal Jindal and Others, , in which, a Bench consisting of three learned Judges of the Apex Court has held that the view in

Mathew''s case does not lay down the correct law. The reasonings of Their Lordships in the above decision is extracted below.

But after taking cognizance of the complaint and examining the complainant and the witnesses if he is satisfied that there is sufficient ground to

proceed with the complaint he can issue process by way of summons u/s 204 of the Code. Therefore what is necessary or a condition precedent

for issuing process u/s 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry

contemplated u/s 202 that there is sufficient ground for proceeding with the complaint hence issue the process u/s 204 of the Code. In none of

these stages the Code has provided for hearing the summoned accused, for obvious reasons because this is only a preliminary stage and the stage

of hearing of the accused would only arise at a subsequent stage provided for in the latter provision in the Code. It is true as held by this Court in

Mathew''s case before issuance of summons the Magistrate should be satisfied that there is sufficient ground for proceeding with the complaint but

that satisfaction is to be arrived at by the inquiry conducted by him as contemplated under Sections 200 and 202 and the only stage of dismissal of

the complaint arises u/s 203 of the Code at which stage the accused had no role to play therefore the question of the accused on receipt of

summons approaching the court and making an application for dismissal of the complaint u/s 203 of the Code for a reconsideration of the material

available on record is impermissible because by then Section 203 is already over and the Magistrate has proceeded further to Section 204 stage.

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 provision of Sections 200 & 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 Code.

Therefore, in our opinion, the observation of this Court in the case of Mathew (supra) that for recalling an order of issuance of process

erroneously, no specific provision of law is required would run counter to the Scheme of the Code which has not provided for review and prohibits

interference at inter-locutory stages. Therefore, we are of the opinion, that the view of this Court in Mathew''s case (supra) that no specific

provision is required for recalling an erroneous order, amounting to one without jurisdiction, does not lay down correct law.

In view of the above decision, making an application for dismissal of the complaint u/s 203 of the Code, for reconsideration of the material

available on record is impermissible and hence the present petitions seeking for dismissal of the complaint u/s 203 of the Code are not maintainable

in law.

It is brought to the notice of this Court that the learned Judicial Magistrates in some districts take the complaints filed u/s 138 of Negotiable

Instruments Act as Calendar Cases while some others take them on file as Summary Trial Cases. In this context, Negotiable Instruments

Amendment Act, 2002 has to be taken note of and followed in letter and spirit. Section 143 which has been inserted by the Amendment Act of

2002, stipulates that notwithstanding anything contained in the Code of Criminal Procedure, all offences contained under Chapter XVII of

Negotiable Instruments Act dealing with dishonour of cheques for insufficiency etc. of funds in the accounts, shall be tried by a Judicial Magistrate

and the provisions of Sections 262 to 265 Cr.P.C, prescribing procedure for summary trials, shall apply to such trials and it shall be lawful for a

Magistrate to pass sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding Rs.5,000/- and it is further

provided that in the course of a summary trial, if it appears to a Magistrate that the nature of the case requires passing of a sentence of

imprisonment, exceeding one year, the Magistrate, after hearing the parties, record an order to that effect and thereafter recall any witness and

proceed to hear or rehear the case in the manner provided in Criminal Procedure Code.

Even though the case relating to an offence u/s 138 of Negotiable Instruments Act is a summons-case, it has to be tried summarily and

Sections 262 to 265 Cr.P.C shall apply. In the course of summary trial, if the nature of the case is such that a sentence of imprisonment exceeding

one year may have to be passed or for any other reason, it is undesirable to try the case summarily, then it is always open to the Magistrate to hear

the parties and record an order to that effect and thereafter recall any witness and proceed to hear or rehear the case as per the procedure in trial

of summons cases.

In the present cases, as concluded above, the petitions filed under Sections 245 and 203 Cr.P.C seeking for discharge of the accused are not

legally sustainable in view of the law declared by the Supreme Court and the impugned common order discharging the respondent/accused is liable

to be set aside on this legal ground alone. Hence, it is not necessary to consider the other contention.

In the result, both the revision cases are allowed and the common order, dated 7.8.2003, passed in Crl.M.P.No.422/2003 in

STR.No.9688/1999 and Crl.M.P.No.423/2003 in STR.No.9689/1999 on the file of learned Judicial Magistrate No.II, Pondicherry is set aside

and the discharge petitions are dismissed and both the cases are restored to file. Having regard to the fact that the Summary Trial Cases are of the

year 1999, the Trial Court shall dispose them in accordance with law, within a period of two months from the date of receipt of the records.