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2004 (9) TMI 605 - SC - Companies LawRevision petition allowed by High Court and the order of discharge made by the trial court set aside - Held that - 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 2004 (8) TMI 647 - SUPREME COURT the only remedy available to an aggrieved accused to challenge an order in an interlocutory stage is the extraordinary remedy under Section 482 of the Code and not by way of an application to recall the summons or to seek discharge which is not contemplated in the trial of a summons case. Appeal dismissed.
Issues:
1. Revision petition challenging order of discharge made by trial court. 2. Power of Magistrate to recall process and discharge accused. 3. Jurisdiction of Trial Court to entertain application for discharge in summons case. 4. Reconsideration of legal principles laid down in previous judgments. 5. Right of accused to challenge process issuance and delay tactics in trial. Issue 1: Revision petition challenging order of discharge made by trial court: The appeal was filed by accused No.4 challenging the High Court's order in a revision petition filed by the 2nd respondent. The High Court set aside the order of discharge made by the trial court in a criminal complaint case. The complaint was filed under Section 138 of the Negotiable Instruments Act, and the trial court had issued summons to the named accused. The accused Company challenged the complaint on the ground of a defective statutory notice, seeking discharge, which was initially rejected but later allowed by the Magistrate. The Sessions Court and the High Court were involved in subsequent challenges to this order. Issue 2: Power of Magistrate to recall process and discharge accused: The Magistrate allowed the Company's application for discharge based on the defective statutory notice, citing a previous judgment allowing the recall of process if legally impermissible. However, the High Court reiterated that once the plea of the accused is recorded, the Magistrate cannot discharge the accused. The appellant, an Executive Director of the accused Company, initiated a second round of litigation challenging the process issuance, which was allowed by the Magistrate but overturned by the High Court. Issue 3: Jurisdiction of Trial Court to entertain application for discharge in summons case: The appellant contended that the Trial Court had erroneously taken cognizance of the offence based on an illegal statutory notice, arguing that the Trial Court could recall the summons or entertain an application for discharge. The High Court held that in a summons case, once the plea of the accused is recorded, the trial must proceed as per Chapter XX of the Code, without a provision for discharge like in a warrant case. Issue 4: Reconsideration of legal principles laid down in previous judgments: The appellant sought reconsideration of legal principles laid down in previous judgments, particularly challenging the decision in Adalat Prasad's case. The Supreme Court, after considering arguments, upheld the decision in Adalat Prasad's case, which did not agree with the law laid down in K.M. Mathew's case, emphasizing that the Code did not provide for recalling process orders without jurisdiction. Issue 5: Right of accused to challenge process issuance and delay tactics in trial: The appellant's delay tactics in challenging process issuance were noted, with the Court observing that the accused had managed to keep the trial in abeyance by initiating multiple proceedings. While the Court did not grant permission for a petition under Section 482, the appellant was allowed to exercise the statutory right to challenge process issuance, with a caution against causing further delays in the trial. In conclusion, the Supreme Court dismissed the appeal, upholding the High Court's decision and emphasizing the need to proceed with the trial without unnecessary delays.
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