MUBARAK NISHAN Vs. R M SUBRAMANIAN

JUDGEMENT

(1.) This is a revision preferred by the petitioner Mubarak Nisha, a pardanashin lady, accused in CC No. 219/94 on the file of Chief Judicial Magistrate, Pudkkottai, which is directed against the order in Crl.M.P.No. 883/95 dismissing the petition filed by her for discharging her and dropping the proceedings under Section 227 read with Section 239 of the Code of Criminal Procedure.

(2.) The facts in brief are as follows: The complainant, the respondent R.M. Subramanian, filed a complaint against the petitioner under Section 138 of the Negotiable Instruments Act stating that on 14-1-1994 the accused/ petitioner borrowed a sum of Rs.3 lakhs from the complainant/respondent and issued three post-dated cheques. In respect of one such cheque, the complainant already filed a complaint before the Lower Court in C.C.No. 62/94. In respect of ether two cheques, the complaint in question was filed and the same was taken on file on C.C. No. 219/94 on the file of Chief Judicial Magistrate, Pudukkottai. After receipt of summons in the above case, the petitioner/ accused filed a petition for discharge under Section 227 read with Section 239 of the Code of Criminal Procedure raising several questions of law in Crl.P.No. 883/95. However, the learned Chief Judicial Magistrate, Pudukkottai, rejected the contentions and held that the complaint was maintainable, thereby the petition was dismissed. Hence the present revision.

(3.) At the outset, I must mention that the petition filed by the petitioner before the learned Chief Judicial Magistrate in Crl.M.P.No. 883/95 under Section 227 read with Section 239 of the Code of Criminal Procedure is misconceived. Section 227 of the Code of Criminal Procedure relates to the powers of the Sessions Court to frame charges. Section 239 relates to the powers of the Magistrate to discharge the accused in a warrant case. But, this case having been filed under Section 138 of the Negotiable Instruments Act relates to summons procedure contemplated under the Code of Criminal Procedure.As such, the petition filed by the petitioner before the Lower Court under the relevant section was not competent and the same was not maintainable. However, as per the decision K.M. 'Mathew vs. State of Kerala1, the Supreme Court held that even in summons cases, the petition could be maintained under Section 204, Cr.P.C. to drop the proceedings. So, I have no hesitation to hold that though the petitioner was filed by quoting wrong provisions,viz., Section 227 read with Section 239, Cr.P.C. it could be construed as having been filed under Section 204, Cr.P.C. to drop the proceedings and discharge the accused.