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2006 DIGILAW 2810 (MAD)

S. v. Chidambaram VS S. Sikkandhar Batcha

2006-10-18

A.SELVAM

body2006
Judgment :- The criminal revision petitioner calls in question the legality of the order dated 14.10.2003 passed in Criminal Revision Petition No.25 of 2003, by the Principal District & Sessions Court, Madurai. 2. The criminal revision respondent herein as petitioner has filed the criminal miscellaneous petition No.3929 of 2002, in C.C.No.131 of 2002, on the file of the Judicial Magistrate No.I, Madurai, praying to discharge him from the proceedings of C.C.No.131 of 2002. It has been contended on the side of the petitioner therein that the respondent therein has not invoked correct provision of law in the petition filed by him. It is also stated that since civil remedy is available, the petition filed by the respondent is not legally maintainable. It is also equally stated that it is false to contend that the petitioner and other have borrowed the amount in question individually. Further, it is stated that the cheque in question has been issued only for collateral security. Under the said ground, the petitioner has filed the petition praying to discharge him from the proceeding of C.C.No.131 of 2002. 3. On the side of the respondent serious objections have been raised. 4. On the basis of the rival contentions raised by either party, the Judicial Magistrate No.I, Madurai, has come to the conclusion that the petitioner is not entitled to get discharge from the proceedings of C.C.No.131 of 2002 and ultimately, dismissed the petition. 5. Against the dismissal order, the petitioner as criminal revision petitioner has filed the Criminal Revision Petition No.25 of 2003 on the file of the Principal District & Sessions Court, Madurai. The first appellate Court has allowed the criminal revision petition filed by the criminal revision petitioner therein and thereby discharged him from the proceedings of C.C.No.131 of 2002. Against the order passed by the first appellate Court, the present criminal revision case has been filed. 6. Despite of notice sent to the respondent, respondent has not made appearance either by himself or through any counsel. 7. The short point that has to be decided in the present criminal revision case is whether the petition filed by the criminal revision respondent herein in the trial Court is legally maintainable. 8. 6. Despite of notice sent to the respondent, respondent has not made appearance either by himself or through any counsel. 7. The short point that has to be decided in the present criminal revision case is whether the petition filed by the criminal revision respondent herein in the trial Court is legally maintainable. 8. The learned counsel appearing for the criminal revision petitioner has befittingly contended that the criminal revision petitioner has filed C.C.No.131 of 2002, on the file of the Judicial Magistrate No.I, Madurai, under Section 138 of Negotiable Instruments Act and the criminal revision respondent has also been questioned relating to the offence alleged to have been made by him and under the said circumstances, the petition filed by the criminal revision respondent so as to discharge him from the proceedings of C.C.No.131 of 2002 is not at all maintainable and the trial Court has rightly dismissed the same, but the first appellate Court has erroneously allowed the petition filed by the criminal revision respondent and therefore, the order passed by the first appellate Court is liable to be set aside. 9. In support of his contention, he has drawn the attention of the Court to the decision reported in 2004(4) CTC 613 Supreme Court (Subramanium Sethuraman Vs. State of Maharashtra and another) wherein the Apex Court has held that; "Once plea of accused is recorded under Section 252 of the Code, the procedure contemplated under Chapter XX has to follow, which is to take the trial Court to its logical conclusion." 10. The learned counsel appearing for the criminal revision petitioner has also relied upon the decision reported in 2005 (3) CTC 671 (M/s. Sri Lakshmi Narayanan Finance, rep. by its Partner C.N.Raghava Mudaliar Vs. P.Vasanthi) wherein also this Court has held that; "Person accused of offence under Section 138 of Negotiable Instruments Act, cannot file petition seeking discharge" 11. Therefore, from the conjoint reading of the decision reported supra, it is needless to say that the petition filed by the criminal revision respondent praying to discharge him from the proceedings of C.C.No.131 of 2002 is not at all legally maintainable. The trial Court has rightly dismissed the petition. But, the first appellate Court without considering the correct provision of law has erroneously allowed the petition. The trial Court has rightly dismissed the petition. But, the first appellate Court without considering the correct provision of law has erroneously allowed the petition. Therefore, in view of the decisions reported to earlier the order passed by the first appellate Court is totally erroneous and the same is liable to be set aside. 12. In fine, this criminal revision case is allowed and the order dated 14.10.2003 passed in the criminal revision petition No.25 of 2003 by the Principal District & Sessions Court, is set aside and the order passed by the trial Court in Crl.M.P.No.3929 of 2002 in C.C.No.131 of 2002 is restored.