Ramaswamy vs Dhanalakshmi Bankers

S. Sardar Zackria Hussain, J.—The revision petitioner is the sole accused in C.C. No. 253 of 2001 on the file of the Court of Judicial

Magistrate, Thiruchengodu. The revision is directed against the dismissal of the discharge petition in Crl.M.P. No. 2796 of 2003 by order dated

18.7.2003 filed u/s 245 Cr.P.C.

The petition in Crl.M.P. No. 2796 of 2003 was filed by the revision petitioner/accused stating that he borrowed a sum of Rs. 2,50,000/- from

the complainant for which he issued two signed cheques without filling up the other particulars. It is further stated that the entire loan amount for

which the cheques were issued was discharged but despite the same, the complainant has not returned the said two cheques. The said petition was

opposed by the respondent / complainant disputing such contentions raised by the accused.

The trial Court, accepting the objections put forth by the complainant, dismissed the petition by order dated 18.7.2003 recording finding that the

case is pending for two years and examination of witnesses on the side of the complainant has been completed, which is under challenge in this

revision.

Learned counsel for the revision petitioner, reiterating the stand taken in the discharge petition, contended that the cheques were issued only

after signing and without filling up the particulars, viz., with regard to the amount, etc., and that the loan amount for which the cheques were issued,

have been discharged. He further submitted that the cheque has been materially altered which can be seen from the difference in ink and as such,

the complaint is not maintainable.

The private complaint filed by the respondent for dishonour of two cheques issued by the accused was taken on file in C.C. No. 253 of 2001

u/s 138 of Negotiable Instruments Act. The fact remains that the case in C.C. No. 253 of 2001 is a summons case and as such, the petition filed in

Criminal M.P. No. 2796 of 2003 to discharge the accused is not maintainable. It is settled that in a summons case, the accused cannot seek to

discharge himself by filing petition.

In Subramanium Sethuraman Vs. State of Maharashtra and Another, , 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 u/s 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 u/s 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.

It is further seen that the learned Judicial Magistrate has also recorded finding that the date 29.02.2001 mentioned in the cheque issued by the

accused will not in any manner affect the case of the complainant and that the case has been pending for two years in which the examination of

witnesses on the side of the complainant has been completed.

Therefore, it is clear that inasmuch as the criminal case C.C. No. 253 of 2001 is a summons case and initiated u/s 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.

In the result, the Criminal Revision Case is dismissed. The order dated 18.7.2003 passed in Crl.M.P. No. 2796 of 2003 in C.C. No. 253 of

2001 by the Judicial Magistrate, Thiruchengodu is confirmed.