ORDER
S.L. Kochar, J.
1. This revision has been filed by the applicant/complainant against the order dated 19.12.2003 passed by III A.C.J.M., Indore in Criminal Case No. 2277/2002 whereby discharged the non-applicant No. 1 Smt. Kirti, wife of Rajiv Agarwal, the non-applicant No. 2 on the ground that the cheque was not signed by her.
2. The contention of the learned Counsel for applicant is that non-applicant No. 1 Smt. Kirti Agarwal has raised the loan from the applicant and she was having joint account in State Bank of Bikaner and Jaipur, Branch Sanyogitaganj, Indore. He has also submitted that the cheque was issued under the signature of non-applicant No. 2 Rajiv Agarwal, the husband of the non-applicant No. 1 and both were having joint account. He has also submitted that in the cheque, name of account holder is mentioned as Smt. Kirti Agarwal. The learned Counsel has also submitted that payment is to be made from the concerned account for which the cheque was issued. The learned Trial Court has failed to consider this aspect and discharged the non-applicant No. 1 Smt. Kirti Agarwal in a premature stage on an application filed by the non-applicant Smt. Kirti Agarwal under Section 245 of the Cr.P.C. and as a matter of fact this application was not maintainable because Section 245 can be applied only in a warrant trial whereas the offence involved is a summons trial.
3. On the other hand, the learned Counsel for non-applicants has submitted that since the cheque was not issued by the non-applicant No. 1 Smt. Kirti, she cannot be held responsible because she was not the drawer of the said cheque and Section 7 is providing definition of drawer. The learned Counsel has placed reliance on the judgment passed by the Kerala High Court in G. Hari and Ors. v. John Promod Alexander and Anr., 2000 Cr. I.J. 1658.
4. Having heard the learned Counsel for parties and after giving my anxious consideration to Sections 7 and 138 of the Negotiable Instruments Act as well as the facts of this case, the facts emerged are that the non-applicant No. 1 Smt. Kirti has taken loan of rupees one lac from the applicant. She was having joint account in the Bank with her husband, non-applicant No. 2 Rajiv Agarwal and this loan was repaid by cheque and on the said cheque, name of the non-applicant No. 1 Smt. Kirti is mentioned as holder of account and signature was done by non-applicant No. 2 Rajiv Agarwal. Both can sign on the cheque or either of one can sign on the cheque because it was a joint account. The law maker have used in the main body of Section 138 regarding payment of money from out of the account. Here in the main section, the word drawer or drawee is not mentioned. This is mentioned in the provisos (b) and (c). In the present case, both the non-applicants are husband and wife. They are having joint account. Therefore, any one can issue the cheque and in view of this Court legally this will be considered as a cheque issued by the person who has raised the loan. Apart from this, the application under Section 245, Cr.P.C. was not maintainable because this provision is meant for warrant trial in a case instituted otherwise than on a police report. The judgment passed by the Supreme Court in K.M. Mathew v. State of Kerala, I (1992) CCR 316 (SC)=AIR 1992 SC 2206, has been referred to the Larger Bench by the Supreme Court in case of Neelmani v. Benett Colman Mills, 1998 SCC (Crl.) 1551. The issue involved in this case is whether the Court can review its own order when in Criminal Procedure Code, there is no specific provision for review.
5. The judgment cited by the learned Counsel for non-applicants passed G. Hari’s case (supra) is not applicable in the present case because in G. Hari’s case (supra), the account was not in the joint name and cheque was not issued by the person who is also the account holder along with the person whose name is mentioned as account holder and who has raised the loan.
6. In the light of the above mentioned facts and feature as well as legal position, the order passed by the learned Trial Court discharging the non-applicant No. 1 Smt. Kirti is set aside and the Trial Court is directed to proceed against both the non-applicants in accordance with the law. However, it is made clear that the Trial Court shall not take into consideration at the time of final disposal of the case, any of the observations made by this Court in this order.
7. The revision is allowed in the terms as indicated hereinabove.