Case: Suhbramanium Sethuraman Vs. State Of Maharashtra

2. The facts necessary for the disposal of this appeal are as follows:The 2nd respondent herein lodged a complaint before the Additional Chief Metropolitan Magistrate for offence punishable under Section 138 of the Negotiable Instruments Act against the appellant herein and four others, which included a Company and its Directors. It is not disputed that the appellant herein was one of the Directors of the Company. The complaint in question was filed in December, 1996 and after following the procedure laid down in Chapter XV and XVI of the Code of Criminal Procedure, 1973, the trial court issued summons to the accused in the complaint. On receipt of the complaint, the 1st accused Company challenged the same before the very same Magistrate on the ground that the Magistrate could not have taken cognizance of the offence because of the defective statutory notice. Therefore, the Company sought for its discharge. The said application came to be rejected. Thereafter, the second application for discharge was filed by the Company on the very same ground which was allowed by the Magistrate following the judgment of this Court in the case of K.M. Mathew vs. State of Kerala and another (1992 (1) SCC 217 ) which judgment had held that it was open to the Magistrate taking cognizance and issuing process to recall the said process in the event of the summoned accused showing to the court and that the issuance of process was legally impermissible. In this process, the Magistrate came to the conclusion that the statutory notice issued by the complainant was not in conformity with the requirement of law3. Aggrieved by the said order of discharge made by the learned Magistrate, the complainant challenged the same by way of a revision petition before the learned Sessions Court on the ground that the learned Magistrate had no power to review his earlier order because of the Bar under Section 362 of the Cr.P.C. The Sessions Court accepted the contention of the appellant and allowed the revision petition without going into the merits of the legality of the statutory notice4. The Company thereafter challenged the said order of the learned Sessions Judge by way of a criminal writ petition filed under Article 227 of the Constitution of India before the High Court of Judicature at Bombay. The High Court by its order dated 20th December, 2000 rejected the said petition on the ground that once the Magistrate records the plea of the accused and the accused pleads not guilty then the Magistrate is bound to take all such evidence as may be produced in support of the prosecution and there is no provision under the Cr.P.C. enabling the Magistrate to recall the process and discharge the accused after recording the plea of the accused. It is to be noted that there is no dispute in regard to the fact that the plea of all the accused was recorded by the Magistrate on 1.11.19995. The above said order of the High Court dismissing the criminal writ petition was challenged in a special leave petition bearing No. SLP (Crl.) No. 429/2001 by the Company before this Court. This Court rejected the SLP summarily on 5.2.2001 by the following order:Mr. Gopal Subramanian addressed arguments for some time. After noticing the observations made by this Court, he requested for permission to withdraw this SLP without prejudice (to) his contentions (to) be raised at the appropriate stage. We therefore, dismiss this SLP as withdrawn6. After withdrawing the SLP, one would have accepted the accused in the case toe with the trial court in concluding the trial at the earliest but that was not to be. The second round of litigation challenging the issuance of process was then initiated by the present appellant herein who is none other than the Executive Director of they which had earlier fought the litigation right up to this Court. In the fresh application filed before the learned Magistrate, the appellant in his turn contended that the statutory notice issued was contrary to law, hence, no cognizance could have been taken by the learned Magistrate nor the process could have been issued. This application was filed within 10 days after the rejection of the above said SLP by this Court. A perusal of the averments made in the application for discharge by the appellant in the second round of litigation shows that the said application was also on the same grounds as was taken by the Company when it filed the application for discharge. Surprisingly, this application of the appellant came to be allowed by the Magistrate holding the statutory notice issued prior to filing of the complaint was not in accordance with law and in view of the judgment of this Court in the case of K.M. Mathew vs. State of Kerala and another (1992 (1) SCC 217 ) it was open to him to recall the order of issuance of process. In that process, he allowed the application of the appellant for discharge7. Being aggrieved by the said order of the learned Magistrate, the complainant filed a criminal revision petition before the High Court of Judicature at Bombay which by the impugned order reiterated its earlier view that it was not open to the Magistrate to order the discharge of an accused once his plea has been recorded and on that basis it allowed the revision petition of the complainant keeping open the question of validity of the statutory notice to be raised at the trial8. It is against the said order of the High Court, the appellant is before us in this appeal.

Reasoning:
we are of the opinion that the argument of the learned counsel for the appellant that the decision of this Court in Adalat Prasads case requires reconsideration cannot be accepted. It is true that the case of Adalat Prasad pertained to a warrant case whereas in Mathews case the same pertained to a summons case. To this extent, there is some difference in the two cases, but that does not, in any manner, make the law laid down by this Court in Adalat Prasads case a bad law13. In Mathews case this Court held that consequent to a process issued under Section 204 by the concerned Magistrate it is open to the accused the enter appearance and satisfy the court that there is no allegation in the complaint involving the accused in the commission of the crime. In such situation, this Court held that it is open to the Magistrate to recall the process issued against the accused. This Court also noticed the fact that the Code did not provide for any such procedure for recalling the process. But supported its reasoning by holding for such an act of judicial discretion no specific provision is required15. From the above, it is clear that the larger Bench of this Court in Adalat Prasads case did not accept the correctness of the law laid down by this Court in K.M. Mathews case. Therefore, reliance on K.M. Mathews case by the learned counsel appearing for the appellant cannot be accepted nor can the argument that Adalat Prasads case requires reconsideration be acceptedThe 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 conclusion19. We see that this Court while dismissing earlier S.L.P. as withdrawn had left the question of legality of the notice open to be decided at the trial. Therefore, legitimately the appellant should raise this issue to be decided at the trial. Be that as it may, we cannot prevent an accused person from taking recourse to a remedy, which is available in law. In Adalat Prasads case we have held that for an aggrieved person the only course available to challenge the issuance of process under Section 204 of the Code is by way of a petition under Section 482 of the Code. Hence, while we do not grant any permission to the appellant to file a petition under Section 482, we cannot also deny him the statutory right available to him in law. However, taking into consideration the history of this case, we have no doubt the concerned court entertaining the application will also take into considerations i.e. raised by the respondent in this case as to delay i.e. being caused by the entertainment of applications and petitions filed by the accused.