Summons cannot be recalled at the accused's instance; proprietorship concerns are outside Section 141, and Section 202 inquiry may rest on affidavits.

In a complaint under Section 138 of the Negotiable Instruments Act, a Magistrate has no power to recall or review summons at the accused's instance after process is issued, so a discharge or exoneration application is not maintainable. Section 141 does not apply to a proprietorship concern as such because it is not a separate juristic person; the proprietor remains personally liable, and the prosecution against the proprietor can proceed. On Section 202 CrPC, the Magistrate may rely on affidavit evidence and supporting documents, and oral examination of witnesses is not compulsory in this limited inquiry. The challenge to the summoning order therefore failed.

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Issues: (i) whether the Magistrate had jurisdiction to entertain a discharge or exoneration application after issuance of summons in a complaint under Section 138 of the Negotiable Instruments Act, 1881; (ii) whether Section 141 of the Negotiable Instruments Act, 1881 applies to a proprietorship concern; (iii) whether the summoning order suffered from non-compliance with Section 202 of the Code of Criminal Procedure, 1973.

Issue (i): whether the Magistrate had jurisdiction to entertain a discharge or exoneration application after issuance of summons in a complaint under Section 138 of the Negotiable Instruments Act, 1881.

Analysis: Once process is issued on a complaint, the Code does not provide a power to recall or review the summons merely at the instance of the accused. The availability of a discharge application was not conferred by the earlier liberty to move an application, because such application still had to be tested on maintainability. The governing principle is that the stage of issuing process is controlled by the Magistrate's satisfaction under the complaint procedure, and after that stage the accused cannot seek reconsideration of the summoning order in the absence of a statutory power.

Conclusion: The application for discharge was not maintainable and the refusal to entertain it was correct.

Issue (ii): whether Section 141 of the Negotiable Instruments Act, 1881 applies to a proprietorship concern.

Analysis: Section 141 is attracted where the offence is committed by a company, including a firm or other association of individuals, and fastens vicarious liability on persons in charge of the business. A proprietorship concern is not a company and is not a separate juristic person; it is only a name through which the proprietor conducts business. The proprietor remains personally liable for the acts and liabilities arising from the business. Therefore, the mere mention of Section 141 in the complaint did not render the prosecution unsustainable where the accused concern was a proprietorship and the proprietor was separately arraigned.

Conclusion: Section 141 was inapplicable to the proprietorship concern, but the complaint and prosecution against the proprietor remained maintainable.

Issue (iii): whether the summoning order suffered from non-compliance with Section 202 of the Code of Criminal Procedure, 1973.

Analysis: In complaints under Section 138 of the Negotiable Instruments Act, 1881, the complainant's evidence may be placed by affidavit, and the Magistrate may rely on documents while conducting the limited inquiry contemplated by Section 202. Examination of witnesses on oath is not compulsory in such proceedings, and the materials placed before the Magistrate included the affidavit, cheque, bank memo, notice, and postal receipt. The record therefore showed compliance with the legal requirement for taking cognizance and issuing process.

Conclusion: No illegality was shown in the summoning order on the ground of Section 202 compliance.

Final Conclusion: The revisional challenge to the rejection of the exoneration application failed, and the prosecution against the proprietor for dishonour of cheque was permitted to proceed.

Ratio Decidendi: In a complaint under Section 138 of the Negotiable Instruments Act, 1881, a Magistrate has no power to recall summons at the instance of the accused, Section 141 does not apply to a proprietary concern as such, and affidavit and documentary material can suffice for the limited inquiry under Section 202 of the Code of Criminal Procedure, 1973.

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