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Judgment
Rengasamy, J.—This revision is against the order of the learned XIV Metropolitan Magistrate in Crl.M.P. No. 6092/94 in C.C. No.
3155/94 dismissing the petition or the Petitioners to discharge them.
These Petitioners have been prosecuted u/s 138 of the Negotiable Instruments Act and after entering appearance by these Petitioners they filed
a petition M.P. No. 6092/94 to discharge them on certain grounds mentioned in the petition. The learned Magistrate dismissed the petition holding
that as this being a summons case there is no pro vision to discharge the accused and therefore, the petition was not maintainable. As against this
order, the revision is filed by the Petitioners-accused.
The learned Counsel for the revision Petitioners Mr. Shanmughasundaram refers to a decision of the Supreme Court in K.M. Mathew Vs. State
of Kerala and another, wherein the Supreme Court has found that even for the offence u/s 500 read with Section 34 of Indian Penal Code the
accused persons, entering appearance are entitled to plead that the case was not triable against them. The Supreme Court has found that if the
taking on file of the complaint and the issue of summons was not proper according to law, the accused persons are entitled to plead to drop the
proceedings against them.
According to the learned Counsel Mr. Shanmughasundaram as trial for Section 500 of I.P.C. is under the summons procedure and the Supreme
Court has found that even in such case if the issue of summons to the accused is not proper, the accused is entitled to contend to drop the
proceedings, the same plea is available to this case also, as this proceeding is a summons case and therefore the order of the learned Magistrate
dismissing the petition on the ground that the concept of discharge is not applicable for summons case is incorrect. I have heard the arguments of
the Respondent''s counsel also. In the light of this decision of the Supreme Court it cannot be straightaway held that in the summon cases the
accused is not entitled to plead for discharge. Therefore, the order of the court below is set aside and the matter is remanded back to dispose of
the petition of the Petitioners on merit in the light of the decision of the Supreme Court mentioned above. The revision is allowed.