This criminal revision petition has been preferred against the order dated 09.12.2003 made in Crl.M.P.No.4216 of 2003 in C.C.No.314 of 2003 on the file of the Judicial Magistrate No.II, Pondicherry.
2. The said Crl.M.P.No.4216 of 2003 was filed by the petitioner / accused under
Section 245 (2) of Cr.P.C, seeking discharge. It is seen that the case was taken on file on the complaint given by the respondent / complainant under Section 138 and 142 of Negotiable Instruments Act r/w
Section 200 of the Code of Criminal Procedure. As per the complaint, the petitioner / accused herein borrowed a sum of Rs.4,50,000/- from the respondent / complainant and issued three cheques for Rs.1,50,000/-, Rs.1,00,000/- and Rs.2,00,000/- respectively, the same were dishonoured by the bank due to insufficient funds. After issuance of legal notice, the respondent filed the complaint before the Court below and the same was taken on file.
3. The short question for consideration in this criminal revision petition is whether the order passed by the Court below dismissing the petition filed under Section 245 (2) of the Code of Criminal Procedure is legally sustainable.
4. Learned counsel appearing for the petitioner submitted that the petitioner herein had signed the cheques only as proprietor of M/s. Essessar Agencies and not in a personal capacity and therefore, the complaint preferred by the respondent is not legally maintainable.
5. It is not in dispute that the petitioner has signed the cheques as proprietor of M/s. Essessar Agencies. As it is a sole trading concern, the petitioner cannot separate the proprietary concern and the proprietor who signed the cheques, as the proprietary concern has no separate legal entity, even with regard to criminal liablity.
6. Learned counsel appearing for the respondent contended that the petitioner is not entitled to be discharged under Section 245 (2) of the Code of Criminal Procedure and therefore, there is no illegality in the impugned order passed by the Court below and as such, the Criminal Revision Petition is not legally sustainable. In support of her contention, the following decisions were relied on :
1. Adalat Prasad vs. Rooplal Jindal, 2004 (4) CTC 608
2. Subramanium Sethuraman vs. State of Maharashtra, 2005 SCC (Cri) 242
7. In Subramanium Sethuraman vs. State of Maharashtra, reported in 2005 SCC (Cri) 242, the Hon'ble Apex Court has held that a summons case is covered by Chapter 20 Cr.P.C, which does not contemplate a stage of discharge like Section 239 which provides for a discharge in a warrant case. Therefore, once the plea of the accused is recorded under
Section 252 Cr.P.C, the procedure contemplated under Chapter 20 has to be followed which is to take the trial to its logical conclusion. The only remedy available to an aggrieved accused to challenge an order in an interlocutory stage is the extraordinary remedy under
Section 482 Cr.P.C. and not by way of an application to recall the summons or to seek discharge. The Hon'ble Supreme Court has held that the validity of the statutory notice under Section 138 of Negotiable Instruments Act, 1881 to be considered at the trial stage, which cannot be a ground for discharge. In Adalat Prasad vs. Rooplal Jindal, reported in 2004 (4) CTC 608, similar view has been taken by the Hon'ble Apex Court.
8. As the case was taken on file under Section 138 of Negotiable Instruments Act on account of dishonour of cheques issued by the revision petitioner, due to insufficient funds in the Bank Account, there is a prima facie case made out as against the petitioner / accused. The petitioner has issued the cheque as proprietor of the sole trading concern, which has no separate identity, hence, I am of the view that the plea of discharge raised by the petitioner is not legally sustainable, however, he can raise all his defence in the trial.
9. On the aforesaid facts and circumstances, I hold that there is no error or infirmity in the impugned order to be interfered with.
10. In the result, this criminal revision petition is dismissed. Consequently, connected Crl.M.P.No.3286 of 2004 is also dismissed.
tsvn To
1. The Judicial Magistrate No.II Pondicherry.
2. The Public Prosecutor, High Court, Madras