IMPORTANT POINT
Order of summons cannot be challenged by way of revision petition.

T. Sudanthiram, J.—The revision petitioner is the accused in C.C. No. 233 of 2009 on the file of learned Judicial Magistrate No.1, Erode. A private complaint for an offence under Section 138 of Negotiable Instruments Act was filed by the petitioner herein. After talking Sworn statement, the learned Magistrate issued summons, to the accused who is the revision petitioner herein. Challenging the summons issued 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 that thought the entire cheque amount has been repaid to the complainant, the Cheque return memo was forged and the complaint has been filed against the accused.

3. The learned Counsel for the respondent submitted that this revision challenging the issuance of the summons is not maintainable and relied on the decision of the Hon’ble Supreme Court in Adalat Prasad vs. Rooplal Jindal, (2005) 1 MLJ (Crl) 166 and Subramanium Sethuraman v. State of Maharastra and another, AIR 2004 SC 4711: (2005) SCC (Crl) 242.

4. The learned Counsel for the pelitioner submitted that the issuance of summons is an interlocutory order and it can be challenged by way of revision and also relied on the decision of the Hon’ble Supreme Court in V.C. Shukla v. State through C.B.I., AIR 1980 SC 962 : (1980) SCC (Cr) 695.

5. This Court considered the submissions and perused the decisions of the Hon’ble Supreme Court.

6. The complaint is filed by the respondent herein against the petitioner for an offence under Section 138 of Negotiable Instrument Act and the learned Magistrate is proceeding the case as summons trial.

7. It is observed by the Hon’ble Supreme Court in Adalat Prasad v. Rooplal Jindal (supra) as follows (2005) 1 M.L.J. (Crl.) 166 at pp. 169 and 170:

“15. But after taking cognizance of the complaint and examining the complainant and witnesses if he is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons under Section 204 of the Code.

Therefore, what is necessary or a condition precedent for issuing process under Section 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under Section 202 that there is sufficient ground for proceeding with the complaint hence issue the process under Section 204 of the Code. In none of these stages the Code has provided for hearing the summoned accused, for obvious reasons because this is only a preliminary stage and the stage of hearing of the accused would only arise at a subsequent stage provided for in the latter provision in the Code. It is true as held by this Court in Mathew’s case before issuance of summons the Magistrate should satisfied that there is sufficient ground for proceeding with the complaint but that satisfaction is to be arrived at by the inquiry conducted by him as contemplated under Sections 200 and 202, and the only stage of dismissal of the complaint arises under Section 203 of the Code at which stage the accused has no role to play, therefore, the question of the accused on receipt of summons approaching the Court and making an application for dismissal of the complaint under Section 203 of the Code for a reconsideration of the material available on record is impermissible because by then Section 203 is already over and the Magistrate has proceeded further to Section 204 stage.

16. It is true that if a Magistrate takes cognizance of an offence, issue process without there being any allegation against the accused or any material implicating the accused or in contravention of provision of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that is not by invoking Section 203 of the Code because the Code of Criminal Procedure does not contemplate a review of an order. Hence, in the absence of any review power or in