V. Selvam v. M/s. Shanthi Processing Unit Pvt. Ltd.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 24.08.2009CORAMTHE HONOURABLE MR. JUSTICE T.SUDANTHIRAMCrl.R.C.No.526 of 2009andM.P.No.1 of 2009V. Selvam .Petitioner/AccusedVersusM/s. Shanthi Processing Unit Pvt. Ltd.,3/1, Thillai Nagar 1st Street, KRP Nagar,Pallipalayam, Erode-8,represented by its Manager/Shareholder/Authorised Person..Respondent/ComplianantPRAYER : Criminal Revision Petition filed under Section 397 & 401 ofCode of Criminal Procedure, to call for the records in the aboveC.C.No.233 of 2009 on the file of Judicial Magistrate No.I, Erodedated 29.04.2009, set aside the order of issuance of process to thepetitioner herein.For Petitioner: Mr.V.KrishnamoorthyFor Respondent: Mr.R.Marudhachala MoorthyO R D E RThe revision petitioner is the accused in C.C.No.233 of2009 on the file of learned Judicial Magistrate No.1, Erode. Aprivate complaint for an offence under Section 138 of NegotiableInstrument Act was filed by the petitioner herein. After takingsworn statement, the learned Magistrate issued summons to the accusedwho is the revision petitioner herein. Challenging the summonsissued to the accused by the learned Judicial Magistrate No.1, Erode,the petitioner has preferred this revision.2. The learned counsel for the petitioner submits thatthough the entire cheque amount has been repaid to the complainant,the cheque return memo was forged and the complaint has been filedagainst the accused. https://hcservices.ecourts.gov.in/hcservices/

3. The learned counsel for the respondent submitted thatthis revision challenging the issuance of the summons is notmaintainable and relied on the decision of the Hon'ble Supreme Courtreported in 2004 Crl.L.J. 4874 [Adalat Prasad v. Rooplal Jindal] and2005 SCC (Crl) 242 [Subramanium Sethuraman v. State of Maharashtraand another].4. The learned counsel for the petitioner submitted thatthe issuance of summons is not an interlocutory order and it can bechallenged by way of revision and also relied on the decision of theHon'ble Supreme Court reported in AIR 1980 Supreme Court 962[V.C.Shukla v. State through C.B.I.]5. This court considered the submissions and perused thedecisions of the Hon'ble Supreme Court6. The complaint is filed by the respondent herein againstthe petitioner for an offence under Section 138 of NegotiableInstrument Act and the learned Magistrate is proceeding the case assummons trial.7. It is observed by the Hon'ble Supreme Court in 2004Crl.L.J. 4874 [Adalat Prasad v. Rooplal Jindal] as follows:"14. But after taking cognizance of the complaintand examining the complainant and the witnesses if he issatisfied that there is sufficient ground to proceed withthe complaint he can issue process by way of summons undersection 204 of the Code. Therefore what is necessary or acondition precedent for issuing process under section 204is the satisfaction of the Magistrate either byexamination of the complainant and the witnesses or by theinquiry contemplated under section 202 that there issufficient ground for proceeding with the complaint henceissue the process under section 204 of the Code. In noneof these stages the Code has provided for hearing thesummoned accused, for obvious reasons because this is onlya preliminary stage and the stage of hearing of theaccused would only arise at a subsequent stage providedfor in the latter provision in the Code. It is true asheld by this Court in Mathew's case before issuance ofsummons the Magistrate should be satisfied that there issufficient ground for proceeding with the complaint butthat satisfaction is to be arrived at by the inquiryconducted by him as contemplated under sections 200 and202, and the only stage of dismissal of the complaintarises under section 203 of the Code at which stage theaccused has no role to play therefore the question of theaccused on receipt of summons approaching the Court and https://hcservices.ecourts.gov.in/hcservices/ making an application for dismissal of the complaint underSection 203 of the Code for a reconsideration of thematerial available on record is impermissible because bythen Section 203 is already over and the Magistrate hasproceeded further to Section 204 stage.15. It is true that if a Magistrate takescognizance of an offence, issues process without therebeing any allegation against the accused or any materialimplicating the accused or in contravention of provisionof Sections 200 & 202, the order of the Magistrate may bevitiated, but then the relief an aggrieved accused canobtain at that is not by invoking section 203 of the Codebecause the Criminal Procedure Code does not contemplate areview of an order. Hence in the absence of any reviewpower or inherent power with the subordinate criminalCourts, the remedy lies in invoking Section 482 of Code.16.Therefore, in our opinion the observation ofthis Court in the case of Mathew (1992 Crl.L.J. 3779 :1992 AIR SCW 2666 : AIR 1992 SC 2206) that for recallingan order of issuance of process erroneously, no specificprovision of law is required would run counter to theScheme of the Code which has not provided for review andprohibits interference at inter-locutory stages.Therefore, we are of the opinion, that the view of thisCourt in Mathews case that no specific provision isrequired for recalling an erroneous order, amounting toone without jurisdiction, does not lay down the correctlaw."8. It is observed by the Hon'ble Supreme Court in 2005 SCC(Crl) 242 [Subramanium Sethuraman v. State of Maharashtra andanother] as follows:"12. Having considered the argument of the learnedcounsel for the parties, we are of the opinion that theargument of the learned counsel for the appellant that thedecision of this Court in Adalat Prasad Case requiresreconsideration cannot be accepted. It is true that thecase of Adalat Prasad pertained to a warrant case whereasMathew case pertained to a summons case. To this extent,there is some difference in the two cases, but that it doesnot, in any manner, make the law laid down by this Court inAdalat Prasad case a bad law.13. In Mathew case this Court held that consequent toa process issued under section 204 by the Magistrateconcerned it is open to the accused to enter appearance andsatisfy the court that there is no allegation in thecomplaint involving the accused in the commission of thecrime. In such situation, this Court held that it is open https://hcservices.ecourts.gov.in/hcservices/ to the Magistrate to recall the process issued against theaccused. This Court also noticed the fact that the Codedid not provide for any such procedure for recalling theprocess, but supported its reasoning by holding that forsuch an act of judicial discretion no specific provision isrequired.14. In Adalat Prasad case this Court considered thesaid view of the Court in K.M.Mathew case and held that theissuance of process under Section 204 is a preliminary stepin the stage of trial contemplated in Chapter XX of theCode. Such an order made at a preliminary stage being aninterlocutory order, same cannot be reviewed orreconsidered by the Magistrate, there being no provisionunder the Code for review of an order by the same court.Hence, it is impermissible for the Magistrate to reconsiderhis decision to issue process in the absence of anyspecific provision to recall such order. In that line ofreasoning this Court in Adalat Prasad case held :(SCCp.343, para 16)"Therefore, we are of the opinion, that the viewof this Court in Mathew case that no specificprovision is required for recalling an erroneousorder, amounting to one without jurisdiction,does not lay down the correct law." 15. From the above, it is clear that the larger Benchof this Court in Adalat Prasad case did not accept thecorrectness of the law laid down by this Court inK.M.Mathew case. Therefore, reliance on K.M.Mathew case bythe learned counsel appearing for the appellant cannot beaccepted not can the argument that Adalat Prasad caserequires reconsideration be accepted.16.The next challenge of the learned counsel for theappellant made to the finding of the High Court that once aplea is recorded in a summons case it is not open to theaccused person to seek a discharge, cannot also beaccepted. The case involving a summons case is covered byChapter XX of the Code which does not contemplate a stageof discharge like Section 239 which provides for adischarge in a warrant case. Therefore, in our opinion theHigh Court was correct in coming to the conclusion thatonce the plea of the accused is recorded under section 252of the Code the procedure contemplated under Chapter XX hasto be followed which is to take the trial to its logicalconclusion.17. As observed by us in Adalat Prasad case the onlyremedy available to an aggrieved accused to challenge anorder in an interlocutory stage is the extraordinary remedyunder Section 482 of the Code and not by way of anapplication to recall the summons or to seek discharge https://hcservices.ecourts.gov.in/hcservices/ which is not contemplated in the trial of a summons case."9. It is observed by the Hon'ble Supreme Court in AIR 1980Supreme Court 962 [V.C.Shukla v. State through C.B.I.] as follows:"6. One of the questions that arose was as to whetheran interlocutory order which could be revised by theSessions Judge, can be further revised under Section 482 ofthe Code by the High Court because S.397(3) permitted thepower or revision to be exercised only by the High Court orthe Sessions Judge but not by both of them. The limitationcontained in S.397(3) runs as follows:-"(3) If an application under this section hasbeen made by any person either to the High Courtor to the Sessions Judge, no further applicationby the same person shall be entertained by theother of them."Sub-section (3), however, does not limit at all theinherent power of the High Court contained in S.482, asmentioned above. It merely curbs the revisional powergiven to the High Court or the Sessions Judge under S.397(1) of the Code. We need not dilate on this aspect becausewe are not called upon to consider the interpretation ofS.397(3) of the Code, although in one of the cases citedbefore us this aspect has been gone into and that is why wehave indicated the same. Mr. Mridul contended that as theSpecial Courts Act has fully applied the procedure of theCode to the trial of the offences by the Special Judge, theexpression 'interlocutory order' has been used exactly inthe same sense as in S.397(2). In other words, thecontention was that S.11 of the Act is modelled on S.397(2)of the Code by telescoping sub-section (2) of the saidsection into S.11(1) of the Act. In support of hiscontention reliance was placed in the case of Amar Nath v.State of Haryana, (1978) 1 SCR 222 and particularly to thefollowing observations made by this Court." It seems to us that the term 'interlocutory order' inS.397(2) of the 1973 Code has been used in a restrictedsense and not in any broad or artistic sense. It merelydenotes orders of a purely interim or temporary naturewhich do not decide or touch the important rights or theliabilities of the parties. Any order which substantiallyaffects the right of the accused, or decides certain rightsof the parties cannot be said to be an interlocutory orderso as to bar a revision to the High Court against thatorder, because that would be against the very object whichformed the basis for insertion of this particular provisionin S.397 of the 1973 Code. Thus, for instance, orderssummoning witnesses, adjourning cases passing order forbail, calling for reports and such other steps in aid of https://hcservices.ecourts.gov.in/hcservices/ the pending proceedings, may no doubt amount tointerlocutory orders against which no revision would lieunder Section 397 (2) of the 1973 Code. But orders whichare matters of moment and which affect or adjudicate therights of the accused or a particular aspect of the trialcannot be said to be interlocutory order so as to beoutside the purview of the revisional jurisdiction of theHigh Court."In that case, one of us (Fazal Ali.J,) was a party to thedecision and spoke for the Court. It is no doubt true thatthis Court held that an order summoning an accused was notan interlocutory order but being a matter of moment itdecided an important aspect of the trial and was,therefore, in a sense a final order which could be revisedby the Sessions Judge or the High Court under S.397 of theCode. The observations made by this Court, however, haveto be read in the light of the peculiar facts of the saidcase. What had happened in that case was that an FIR waslodged at Police station Butana, District Karnal,@ page-SC968mentioning a number of accused persons as havingparticipated in the occurrence. The police, after holdinginvestigation, submitted a charge-sheet against the otheraccused persons except the appellants before the SupremeCourt against whom a final report under S.173 of the Codewas given by the police. The report was placed before aJudicial Magistrate. First Class who, after perusing thesame accepted, the report and released the appellants.Thereafter the complainant filed a revision before theAdditional Sessions Judge against the order of the JudicialMagistrate releasing the appellants but the revisionpetition was dismissed by the Judge. Thereafter theinformant filed a regular complaint before the JudicialMagistrate against all the accused including theappellants. The learned Magistrate after having examinedthe complaint found that no case against the appellants wasestablished. A further revision was taken up before theSessions Judge who accepted the revision and directedfurther inquiry, on receipt of which the Magistrate issuedsummons to the appellants straightway. Against this orderthe appellants went up in revision to the High Court whichdismissed the petition in limine, obviously on the groundthat the order passed by the Magistrate was aninterlocutory one. That is how the matter came up byspecial leave before this Court. It would thus be seenthat before the stage of trial of the case reached theappellants had been released by the Magistrate who acceptedthe final report that no case was made against them. Evena complaint which was in the nature of a protect petition https://hcservices.ecourts.gov.in/hcservices/ against the final report filed before the magistrate wasalso dismissed. When the Magistrate issued summons inpursuance of an order of further inquiry by the SessionsJudge cognizance was taken against the appellants who wereordered to be put on trial because the order summoning theappellants virtually amounted to asking the accused to facethe trial. It was in the background of these circumstancesthat this Court held that such an order being a matter ofmoment affecting important rights of the parties, could notbe said to be purely an interlocutory order. We have nodoubt that the decision of this Court, referred to above,was absolutely correct. In fact this part of the decisionwas endorsed by a later decision of this Court in the caseof Madhu Limaye v. The State of Maharashtra, (1978) 1 SCR749.10. As per the observation made by the Hon'ble Supreme Courtin the decision of V.C.Shukla v. State through C.B.I. a discussionwas made about the case of Amar Nath v. State of Haryana (1978) ISCR 222. A point which was decided in that case is that framingcharge against the accused is not an interlocutory order. Here thequestion arises is that whether the issuance of the summons to theaccused itself could be challenged. It is made clear by the Hon'bleSupreme Court that there is no provision to seek for discharge in asummons case.11. As observed by the Hon'ble Supreme Court in 2004 Crl.L.J.4874 [Adalat Prasad v. Rooplal Jindal] and in view of the decisionrendered by the Hon'ble Supreme Court in 2005 SCC (Crl) 242[Subramanium Sethuraman v. State of Maharashtra and another], thisCourt holds that a revision filed by this petitioner challenging theissuance of summons to the accused is not maintainable.12. Hence revision petition is dismissed. Consequently theconnected Miscellaneous Petition is closed.Sd/Asst.Registrar/true copy/Sub Asst.Registrarars https://hcservices.ecourts.gov.in/hcservices/ To1.The Judicial Magistrate No.I,Erode.2.-do- through the Chief Judicial Magistrate,Erode.+1cc to Mr.V.Krishnamoorthy, Advocate Sr 40807+1cc to Mr.R.Marudhachalamurthy, Advocate Sr 41167DM(CO)km/8.9.Crl.R.C.No.526 of 2009andM.P.No.1 of 2009