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2005 DIGILAW 991 (MAD)

Sri Lakshmi Narayanan v. P. Vasanthi

2005-07-01

S.SARDAR ZACKRIA HUSSAIN

body2005
Judgment :- 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. 2. The revision petitioner in both the cases is the complainant and the respondent in both the cases arrayed as A3 in C.C.Ns.107 and 108 of 2002. 3. 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 under Section 138 of the Negotiable Instruments Act against the respondent being a summons case, the respondent cannot seek discharge herself. 4. The learned counsel for the revision petitioner would rely on the judgment of the Supreme Court rendered in SUBRAMANIUM SETHURAMAN – vs. - STATE OF MAHARASHTRA [ 2004 (4) CTC 613 ], 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 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." 5. Therefore, it is clear that inasmuch as the criminal cases C.C.Nos.107 and 108 of 2002 are summons cases and initiated under Section 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. 6. 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.