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1995 Supreme(Mad) 321
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE RENGASWAMY
JAMES KHAN
Versus
THOMAS COOK INDIA LIMITED
No.
Decided On : 20-03-1995
Accused in a summons case under Section 138 of the Negotiable Instruments Act is entitled to plead for discharge if the issue of summons was not proper according to law, based on the decision of the Supreme Court in K. M. Mathews v. State of Kerala, 1992 (1) S. C. C. 217.
Headnote:
Negotiable instruments Act - Discharge of accused in summons case - The court held that the accused in a summons case under Section 138 of the Negotiable Instruments Act is entitled to plead for discharge if the issue of summons was not proper according to law, based on the decision of the Supreme Court in K. M. Mathews v. State of Kerala, 1992 (1) S. C. C. 217.
Fact of the Case:
The petitioners were prosecuted under Section 138 of the Negotiable Instruments Act and filed a petition to discharge them. The learned Magistrate dismissed the petition, stating that as it was a summons case, there was no provision to discharge the accused.
Finding of the Court:
The court found that the accused in a summons case is entitled to plead for discharge if the issue of summons was not proper according to law, based on the decision of the Supreme Court.
Issues: The issue was whether the concept of discharge is applicable for a summons case under Section 138 of the Negotiable Instruments Act.
Ratio Decidendi: The court relied on the decision of the Supreme Court in K. M. Mathews v. State of Kerala, 1992 (1) S. C. C. 217, which established that even in a summons case, the accused is entitled to plead for discharge if the issue of summons was not proper according to law.
Final Decision: The order of the court below was set aside, and the matter was remanded back to dispose of the petition of the petitioners on merit in the light of the decision of the Supreme Court. The revision was allowed and the petition was allowed.
RENGASWAMY, J.
( 1 ) THIS revision is against the order of the learned XIV Metropolitan magistrate in Crl.
M. P. No. 6092 in C. C. No. 3155/94 dismissing the petition or the petitioners to discharge them.
( 2 ) THESE petitionerrs have been prosecuted under Section 138 of the Negotiable instruments Act and after entering appearance by these petitioners they filed a petition m. P. No. 6092/94 to discharge them on certain grounds mentioned in the petition. The learned Magistrate dismissed the petition holding that as this being a summons case there is no provision to discharge the accused and therefore, the petition was not maintainable. As against this order, the revision is filed by the petitioners-accused.
( 3 ) THE learned counsel for the revision petitioner Mr. Shanmughasundaram refers to decision of the Supreme Court in K. M. Mathews v. State of Kerala, 1992 (1)S. C. C. 217 wherein the Supreme Court has found that even for the offence under section 500 read with Section 34 of Indian Penal Code the accused persons, entering appearance are entitled to plead that the case was not triable against them. The Supreme court has found that if the taking 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.
( 4 ) ACCORDING to the learned counsel Mr. Shanumughasundaram as trial for Section 500 of I. P. C. is under the summons procedure and the Supreme Court has found that even in such case if the issue of summons to the accused is not proper, the accused is entitled to contend to drop the proceedings, the same plea is available to this case also, as this proceeding is a summons case and therefore the order of the learned magistrate dismissing the petition on the ground that the concept of discharge is not applicable for summons case is incorrect. I have heard the arguments of the respondents counsel also. In the light of this decision of the Supreme Court it cannot be straightaway held that in the summon cases the accused is not entitled to plead for discharge. Therefore, the order of the court below is set aside and the matter is remanded back to dispose of the petition of the petitioners on merit in the light of the decision of the Supreme Court mentioned above. The revision is allowed. Petition allowed.
