Sri Lakshmi Narayanan Finance vs P. Vasanthi

S. Sardar Zackria Hussain, J.—Aggrieved against the orders passed by the Judicial Magistrate No. II, Kancheepuram, in C.M.P. Nos.

1721 and 3029 of 2001 in C.C. Nos. 107 and 108 of 2002 respectively dated 21.3.2003 discharging the respondent from criminal cases filed

against her, the above criminal revision cases are filed by the revision petitioner/complainant.

The revision petitioner in both the cases is the complainant and the respondent in both the cases arrayed as A-3 in C.C. Nos. 107 and 108 of

2002.

The learned counsel for the revision petitioner in both the cases submitted that the trial of the criminal cases already commenced and the revision

petitioner/complainant in both the cases examined himself as P.W. 1 and bank witness also examined on his side and at this stage, the discharge

petitions filed by the respondent, subject matter of the revisions, were allowed. In this regard, the learned counsel further submitted that since the

criminal case initiated u/s 138 of the Negotiable Instruments Act against the respondent being a summons case, the respondent cannot seek

discharge herself.

The learned counsel for the revision petitioner would rely on the judgment of the Supreme Court rendered in Subramanium Sethuraman Vs.

State of Maharashtra and Another, in which 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 Vs. Rooplal Jindal and Others, 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.

Therefore, it is clear that inasmuch as the criminal cases C.C. Nos. 107 and 108 of 2002 are summons cases and initiated u/s 138 of Negotiable

Instruments Act, against the respondent/accused, it is not open to the respondent/accused to seek discharge and as such, the orders of the trial

Court in C.M.P. Nos. 1721 and 3029 of 2001 in C.C. Nos. 107 and 108 of 2002 dated 21.3.2003 in discharging the respondent/accused are

hereby set aside.

In the result, both the Criminal Revision Cases are allowed. The orders dated 21.3.2003 passed in C.M.P. Nos. 1721 and 3029 of 2001 in

C.C. Nos. 107 and 108 of 2002 by the Judicial Magistrate No. II, Kancheepuram are set aside. The Judicial Magistrate No. II, Kancheepuram is

directed to restore C.C. Nos. 107 and 108 of 2002 and dispose the same by December, 2005.