- (1.) 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 Court.
(2.) 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 Chapters XV and XVI of the Code of Criminal Procedure, 1973, the trial Court issued summons to the 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 sought for its discharge. The said application came to be rejected. 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 K.M. Mathew v. State of Kerala and another (1992 (1) SCC 217) which judgment had held that it was open to the Magistrate taking cognizance and issuing process to recall the said process in the event of the summoned accused showing to the Court and that the issuance of process was legally impermissible. In this process, the Magistrate came to the conclusion that the statutory notice issued by the complainant was not in conformity with the requirement of law.
(3.) Aggrieved by the said order of discharge made by the learned Magistrate, the complainant challenged the same by way of a revision petition before the learned Sessions Court on the ground that the learned Magistrate had no power to review his earlier order because of the Bar under Section 362 of the Cr.P.C. The Sessions Court accepted the contention of the appellant and allowed the revision petition without going into the merits of the legality of the statutory notice.;