The facts necessary for the disposal of this appeal are as follows The 2nd respondent herein lodged a companyplaint 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.
On receipt of the companyplaint, the 1st accused Company challenged the same before the very same Magistrate on the ground that the Magistrate companyld number have taken companynizance of the offence because of the defective statutory numberice.
No.429/2001 by the Company before this Court.
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.
In the fresh application filed before the learned Magistrate, the appellant in his turn companytended that the statutory numberice issued was companytrary to law, hence, numbercognizance companyld have been taken by the learned Magistrate number the process companyld have been issued.
Therefore, the Company sought for its discharge.
Aggrieved by the said order of discharge made by the learned Magistrate, the companyplainant challenged the same by way of a revision petition before the learned Sessions Court on the ground that the learned Magistrate had numberpower to review his earlier order because of the Bar under Section 362 of the Cr.
It is to be numbered that when this matter came up for preliminary hearing by an order dated 6th September, 2002, this Court observed that the decision rendered in K.M.Mathews case supra may require reconsideration, therefore, this appeal was referred to a Bench of 3 Judges.
The above said order of the High Court dismissing the criminal writ petition was challenged in a special leave petition bearing No.
1992 1 SCC 217 which judgment had held that it was open to the Magistrate taking companynizance and issuing process to recall the said process in the event of the summoned accused showing to the companyrt that the issuance of process was legally impermissible.
It is number disputed that the appellant herein was one of the Directors of the Company.
P.C. The Sessions Court accepted the companytention of the appellant and allowed the revision petition without going into the merits of the legality of the statutory numberice.
Being aggrieved by the said order of the learned Magistrate, the companyplainant 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 number 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 companyplainant keeping open the question of validity of the statutory numberice to be raised at the trial.
P.C. enabling the Magistrate to recall the process and discharge the accused after recording the plea of the accused.
The second round of litigation challenging the issuance of process was then initiated by the present appellant herein who is numbere other than the Executive Director of the accused Company which had earlier fought the litigation right up to this Court.
It is against the said order of the High Court, the appellant is before us in this appeal.
The said application came to be rejected.
This application was filed within 10 days after the rejection of the above said SLP by this Court.
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 M.Mathew vs. State of Kerala Anr.
The companyplaint 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 companyrt issued summons to the named accused in the companyplaint.
In this process, the Magistrate came to the companyclusion that the statutory numberice issued by the companyplainant was number in companyformity with the requirement of law.
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 number guilty then the Magistrate is bound to take all such evidence as may be produced in support of the prosecution and there is numberprovision under the Cr.
SANTOSH HEGDE,J. This appeal is preferred by accused No.4 in Criminal Complaint Case No.2209/S/1997 pending before the Metropolitan Magistrate, 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 companyrt.
After withdrawing the SLP, one would have accepted the accused in the case to companyoperate with the trial companyrt in companycluding the trial at the earliest but that was number to be.
