JAMEEL KHAN v. THOMAS COOK INDIA LTD — 1996 DIGILAW 552 (MAD)

Judgment : M. KARPAGAVINAYAGAM, J. ( 1 ) THIS Criminal Revision has been filed by the peti-tioners/a1 and A2 against the order passed in Crl. M. P. No. 1339 of 1995 in C. C. No. 3155 of 1994 on the file of XIV Metropolitan Magistrate, Egmore, Madras, dismissing the petition filed by the petitioners before the lower Court to discharge them. ( 2 ) THESE petitioners/a1 and A2 have been prosecuted under Section 138 of the negotiable Instruments Act (in short the Act) on the complaint of the respondent on 4. 4. 1994. After entering appearance, they filed a petition for dismissing the complaint in Crl. M. P. No. 1339 of 1995, raising some preliminary objections. This application was dismissed after hearing both parties. The above order, which is challenged before this Court is as follows : "heard both sides. The case was taken on file based on the documents and sworn statement of complaint. The complainant, PWs 2 and 3 have been examined in this case. Certain objections raised by learned Counsel for accused could be looked into only after completion of the trial. Hence preliminary objection petition filed by accused side at this stage is dismissed. " The said order was dated 3. 5. 1995. Aggrieved over this, the present revision has been preferred by the petitioners in this Court on the ground that the Magistrate has passed the order without application of mind and the preliminary objection raised by the accused ought to have been considered. According to the petitioners the observation made by the Magistrate that those objections could be considered only after completion of trial, cannot be sustained in law and the Magistrate should have passed order on merits. ( 3 ) LEARNED Counsel for the respondent contended that the order passed by the magistrate, dated 3. 5. 1995 is in accordance with law and it does not suffer from any illegality or infirmity, as such the order passed by the Magistrate has got to be confirmed and the present revision deserves to be dismissed. ( 4 ) THIS case has got a chequered history. Since the cheques issued by the petitioners/ accused were dishonoured the complainant-respondent sent a statutory notice to the accused to make the payment of the cheques. There was no response. So, on 4. 4. 1994, the complainant filed a complaint. ( 4 ) THIS case has got a chequered history. Since the cheques issued by the petitioners/ accused were dishonoured the complainant-respondent sent a statutory notice to the accused to make the payment of the cheques. There was no response. So, on 4. 4. 1994, the complainant filed a complaint. Then, the Magistrate had taken the complaint on file, issued summons to the accused. The accused on entering appearance filed a petition on 2. 9. 1994 in Crl. M. P. No. 6092 of 1994 to discharge them on certain grounds mentioned in the petition. After hearing both parties, the learned Magistrate dismissed the petition on 4. 10. 1994, as there is no provision to discharge the accused in the summons case. Challenging this order, the petitioners/accused have preferred a revision in crl. R. C. No. 149 of 1995 in this Court. Ultimately, the revision was allowed by this court, holding that the petition for discharge of the accused could be maintainable and that the petitioners are entitled to request the Court to drop the proceedings under section 204 of Code of Criminal Procedure on the strength of K. M. Mathews v. State of Kerala, 1992 (1) SCC 217 . It is significant to note that the said revision was allowed, remanding the matter back to the Magistrate, directing the Magistrate to dispose of the petition on merits. The petitioners did not avail of the opportunity and they did not request the lower Court to pass orders afresh on the basis of the orders of this court made in Crl. R. C. No. 149 of 1995. ( 5 ) IN the meantime, on 18. 11. 1994, 28. 2. 1995, 15. 3. 1995 RWs. 1 to 3 were examined in the presence of the accused in Court and they have also been cross-examined and the matter was directed to be posted for examination of the other witnesses. At that stage the petitioners filed Crl. M. P. No. 1339 of 1995 on 3. 4. 1995, raising certain preliminary objections and requesting this Court to discharge them, on 10. 4. 1995. The complainant/respondent filed a detailed counter-affidavit, stating that those preliminary objections could not to be considered now and that once the witnesses have been examined, the appreciation of the grounds mentioned in the petition for discharge could be considered only after the trial is over. 4. 1995. The complainant/respondent filed a detailed counter-affidavit, stating that those preliminary objections could not to be considered now and that once the witnesses have been examined, the appreciation of the grounds mentioned in the petition for discharge could be considered only after the trial is over. ( 6 ) IN is relevant to note that on the date of filing of the application viz. , 3. 4. 1995, the petitioners did not intimate the trial Court about the earlier orders passed by this court in Crl. RC No. 149 of 1995. In other words, it could be contended that Crl. R. C. No. 149 of 1995 with reference to the application filed by the petitioners in Crl. M. P. No. 6092 of 1994 was prior to the commencement to the trial. As such, the said application was filed when PWs 1 to 3 have not been examined. The question that was considered by this Court was whether under Section 204 of Criminal Procedure Code, proceedings could be dropped against the accused on their entering appearance before the examination of the witnesses. That order passed by this Court in Crl. R. C. No. 149 of 1995, has no relevance to the present case since the present stage relates to the situation, when the examination of the witnesses PWs. 1 to 3 was over. That was probably the reason as to why the petitioners have not submitted this petition viz. , Crl. M. P. No. 1339 of 1995 on the basis of the Crl. R. C. No. 149 of 1995. ( 7 ) NOW the question to be considered by this Court is whether the present application, in Crl. M. P. No. 1339 of 1995, requesting the Court below to discharge the accused, raising certain preliminary objections, after examination of the witnesses, is maintainable, or not. ( 8 ) THE grievance of learned Counsel for the petitioners is that the order passed by the Magistrate on 3. 5. 1995 does not contain any reason, for dismissing the petition and in fact, it was not a speaking order at all, and the same reflects the non-application of mind. ( 8 ) THE grievance of learned Counsel for the petitioners is that the order passed by the Magistrate on 3. 5. 1995 does not contain any reason, for dismissing the petition and in fact, it was not a speaking order at all, and the same reflects the non-application of mind. Per contra learned Counsel for the respondent would submit that when once the Court crossed the stage of Section 204, Criminal Procedure Code by allowing the prosecution to examine the witnesses, who have been cross-examined, the Court cannot go back to Section 204, Criminal Procedure Code to discharge the accused or render to drop the proceedings. He would as well contend that these factual aspects and other preliminary objections could be considered by the Court, only after the trial is over and as such the present application is wholly misconceived and not sustainable in law. ( 9 ) IN K. M. Mathews v. State of Kerala, 1992 (1) SCC 217 : I (1992) CCR 316 (SC) the Supreme Court specifically held that even for the offences under Section 500 read with Section 34 of IPC, which is to be tried as summons case the accused persons are entitled to plead that the case cannot be proceeded against them and that if the taking on file of the complaint and the issue of summons was not proper according to law, the accused persons are entitled to plead to drop the proceedings against them under Section 204 of the Code of Criminal Procedure. It postulates the exact stage at which the plea of discharge or plea for dropping the proceedings could be made. Admittedly, the said stage has been crossed in the present case. ( 10 ) LEARNED Counsel for the petitioners also brought to my notice Sections 258 and 259 of the Code of Criminal Procedure, wherein it has been provided for the Magistrate to stop the proceedings in a summons case. As such, according to learned Counsel for the petitioners, the Magistrate could very well drop or stop the proceedings under these sections. I do not find any force in the said submission of learned Counsel for the petitioners, because Section 258 of Criminal Procedure Code which relates to stoppage of the proceedings in a case taken cognizance of by a Magistrate on a complaint in a non-cognizable case. I do not find any force in the said submission of learned Counsel for the petitioners, because Section 258 of Criminal Procedure Code which relates to stoppage of the proceedings in a case taken cognizance of by a Magistrate on a complaint in a non-cognizable case. Furthermore, the Magistrate as per this provision could order stoppage or proceedings after the evidence of the principal witnesses recorded, pronounce the judgment of acquittal. But the condition precedent for invoking this section is that the proceedings in the form of summons case must have been instituted otherwise than upon a complaint. When such being the position, the provisions of Section 258 of criminal Procedure Code is not applicable to the facts of the present case as this has been instituted as a complaint case by the complainant though it is summons case, as has been held in 1967 MLJ (Crl.) 126. Section 258 of Criminal Procedure Code relates to police case and not a complaint case. Section 259 of the Code of Criminal Procedure also could not be of any use, as it relates to the power of Court to convert summons cases into warrant cases and it does not relate to the plea of discharge or the dropping or stoppage of proceedings. Therefore, the provisions of Section 259 of criminal Procedure Code also cannot be made applicable to the facts of this case. ( 11 ) ON going through the relevant provisions, the material available on record and the case laws, I am of the considered opinion that the Magistrate is not entitled to go into the merits of the case at this stage and that too on the factual aspects, especially when the examination of PWs 1 to 3 was already over. As such the Magistrate cannot be said to be wrong in dismissing the petition on the ground that the grounds of challenge could be appreciated only after the termination of trial. In fact, if any appreciation of the evidence is made, or if any order is passed on merits, it will certainly amount to prejudging the issue on the part of the Magistrate, which is not permissible in law. In other words, if the order was passed on merits, prior to the conclusion of trial, then alone the order would become illegal. In other words, if the order was passed on merits, prior to the conclusion of trial, then alone the order would become illegal. As has rightly been pointed out by learned counsel for the respondent that on the strength of K. M. Mathews v. State of Kerala, 1992 (1) SCC 217 , a Magistrate cannot recall an order of summons or process being the interim order after evidence is taken because any order that would be passed after the examination of witnesses would be a judgment and not an interim order. As such, the ruling of the Supreme Court would not be applicable to the present case. So, in the absence of any provisions found available in Chapter 20 which deals with the trial of summons cases by the Magistrate, the Magistrate cannot invoke inherent powers, which are not vested with him to discharge the accused/petitioners. Time and again the Apex court as well as this Court have held that the Courts have to render justice only in accordance with the procedure contemplated under the Statute and not otherwise, and especially a Magistrate cannot discharge that under the garb of securing the ends of justice by invoking inherent powers, which are vested only with the High Court under section 482 of the Code of Criminal Procedure. Therefore, the order dated 3. 5. 1995, of the lower Court is quite correct and in accordance with law and the same is liable to be confirmed. ( 12 ) HOWEVER, even according to the complainant, the cheque was issued only by the Ist accused/petitioner, as a sole proprietor of the concern. Admittedly, the cheque was signed only by the first petitioner/accused. Nowhere in the complaint or in the deposition copies of PWs 1 to 3, it is mentioned that the second accused also was a party to the issue of cheque. As such, there is no material whatsoever to hold that the second accused/petitioner was also a participant in the commission of the crime under section 138 of the Act. Of course though under the revision, this Court has to only see whether the order under challenge is valid or not in order to secure the ends of justice i must see whether any material is available against accused 2 for continuing the proceedings as against him. Of course though under the revision, this Court has to only see whether the order under challenge is valid or not in order to secure the ends of justice i must see whether any material is available against accused 2 for continuing the proceedings as against him. When I questioned about this aspect, learned Counsel for the respondent, who is appearing for the complainant was not able to point out any solid material to connect A2 with the commission of offence under Section 138 of the Act. In such a situation, I feel that the proceedings against A2 need not be allowed to continue in the absence of any substantial material either in the complaint or in the chief examination or in the cross-examination of PWs 1 to 3. As such, I would like to invoke the inherent powers under Section 482 of the Code of Criminal Procedure to quash the proceedings as against accused-2. In view of the situation, the proceedings against A2 are quashed. The Magistrate is directed to go on with the proceedings as against Al alone as expeditiously as possible. While observing so, I must also point out that the order passed by the Court below on 3. 9. 1995 does not suffer from any infirmity or illegality. The reasoning given by the Magistrate is quite in accordance with the relevant provisions of law and the same therefore cannot be assailed. Only to meet the ends of justice, the proceedings as against A2 alone are liable to be quashed as referred to earlier. ( 13 ) THE Criminal Revision Case and the Criminal Miscellaneous Petitions shall stand disposed of accordingly. Petition disposed of.