TMI Blog2004 (9) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... strate, 33rd Court at Ballard Pier, Bombay challenging an order made by the High Court of Judicature at Bombay in a revision petition filed by the 2nd respondent herein whereby the High Court allowed the revision petition and set aside the order of discharge made by the trial court. 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 named 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 sough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to withdraw this SLP without prejudice (to) his contentions (to) be raised at the appropriate stage. We therefore, dismiss this SLP as withdrawn." After withdrawing the SLP, one would have accepted the accused in the case to co-operate 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 the accused-Company 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken cognizance of the offence and issued summons and having erroneously done so it had the power to recall the summons and or entertain an application for discharge of an accused person. He also contended the fact that Company's petition for discharge has been rejected right up to this Court did take away appellant's right to separately agitate his grievance. Shri Chinmay Khaladhar, learned counsel appearing for the respondent contended that though the case considered by this Court in Adalat Prasad's case involved an offence which was triable as a warrant case, this Court actually considered the power of the criminal courts to recall its earlier orders bearing in mind the prohibition contained in Section 362 of the Code. He also submitted the fact that in Adalat Prasad's case involved a warrant case and in K.M. Mathew's case involved a summons case did not make any difference, so far as the correctness of law considered by this Court in Adalat Prasad's case. He also submitted that the appeal in hand being one triable as a summons case, the Code has not contemplated a stage of discharge and once the plea of not guilty is recorded the appellant has to face a trial as contemplated i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d down the correct law". From the above, it is clear that the larger Bench of this Court in Adalat Prasad's case did not accept the correctness of the law laid down by this Court in K.M.Mathew's case. Therefore, reliance on K.M. Mathew's case by the learned counsel appearing for the appellant cannot be accepted nor can the argument that Adalat Prasad's case requires reconsideration be accepted. The next challenge of the learned counsel for the appellant made to the finding of the High Court that once a plea is recorded in a summons case it is not open to the accused person to seek a discharge cannot also be accepted. The 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 conclusion. As observed by us in Adalat Prasad's case the only remedy available to an aggrieved accused to challenge an order in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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