Chandrakant B. Garware vs M/S.Jayheet Investments ...
2009 Latest Caselaw 127 Bom

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                IN THE  HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                    
                         CRIMINAL APPELLATE JURISDICTION




                                                            
                      CRIMINAL APPLICATION NO.1615 of 2002




                                                           
     Chandrakant B. Garware                           ...   Applicants

       versus




                                           
     M/s.Jayheet Investments Pvt.Ltd& Anr...                Respondents
                          
                                                ...
                         
     Mr.S.V.Marwadi for the applicants.

     Mr.Amol Patankar for respondent no.1.
      


     Mr.A.S.Shitole    APP for the State.
   



                                   CORAM :   D.G. KARNIK, J.

DATED : 17th December 2009

ORAL ORDER:-

1. Heard learned counsel for the parties.

2. By this petition, the petitioner challenges the order dated 13th

March 2002 passed by the Court of Sessions confirming the order dated

18th February 1999 passed by the learned Metropolitan Magistrate

refusing to recall the process.

3. M/s.Jay Heet Investments Pvt.Ltd (hereinafter referred to as "the

complainant") filed a complaint bearing Criminal Case no.64/S/95 of

1994 against Garware Paints Ltd (hereinafter referred to as "the

company"), Mr.R. Venkateshan, Dy.Managing Director of Garware Paints

Ltd and Mr.C.V. Subramaniam, an Officer of Garware Paints for an

offence punishable u/s.138 r/w sec.142 of the Negotiable Instruments

Act. After recording the verified statement, the learned Magistrate

issued process against all the three accused. Thereafter, the

complainant made an application for adding Mr.Chandrakant B.

Garware, the petitioner herein who was the Managing Director of the

Company, and six other directors/officers of the company as party

accused on the ground that they were also in charge of and responsible

for its affairs to the company. The application was allowed. The order

adding the applicant and other directors/officers as party accused was

challenged in this court by them by filing Criminal Application No.429

of 1997 u/s.482 of the Code of Criminal Procedure. When that

application came up for hearing, counsel for the complainant stated

that the complainant did not wish to prosecute the complaint against

added accused except the present petitioner who was the Managing

Director of the Company. In view of this statement, the applicants

therein sought leave of the court to withdraw the criminal application

no.429 of 1997. By an order dated 3rd December 1997, this court

allowed the withdrawal. Thus, by virtue of withdrawal of the Criminal

Application no.429 of 1997, the order joining the present petitioner as a

party-accused no.4 to the complaint has become final.

4.

After withdrawal of the Criminal Application no.429 of 1997,

the learned Magistrate issued the summons (process) to the applicant.

By an application dated 30th July 1998 made to the learned Magistrate,

the applicant prayed for recall of the process issued against him. By an

order dated 18th February 1999, the learned Magistrate rejected the

application. The petitioner challenged the order of the Magistrate by

filing a revision application, bearing revision no.218 of 1999, in the

Court of Sessions. By an order dated 13th March 2002, the revision

application was dismissed by the Additional Sessions Judge, Gr.Bombay.

That order is impugned in the present petition.

5. It appears that there was some misapprehension in the mind of

the learned Magistrate about the nature of the application dated 30th

July 1998 made by the applicant for recalling the process. In

paragraph no.1 of the order, he has observed that he was considering

the application made by the petitioner "for discharge". In the final

paragraph of the order also, he has stated that he was rejecting the

"application for discharge". Consequently, the learned Sessions Judge

has also used the same phraseology that he was dealing with the order

of the Magistrate "refusing to discharge". An offence u/s.138 of the

Negotiable Instruments Act, at the relevant time was punishable with

sentence for a term of imprisonment upto six months only. It is only by

an amendment made in the year 2003 that the sentence of

imprisonment that can be imposed has been increased upto two years.

At the relevant time, the case before the Magistrate was triable as a

summary trial. Therefore, there was no occasion of framing of a charge

and the applicant applying for a discharge. The application dated 30th

July 1998 was in fact not an application for discharge but was an

application for recall of the process. That is clear from the prayer made

in the application which reads thus:

"In view of the aforesaid facts and circumstances, this Hon'ble Court will be pleased to recall the order of issue of process dated 19th December 1996 issued against the present applicant in the interest of justice."

I would therefore consider the legality of the order passed by the

learned Magistrate on the basis that it was passed on an application for "recall of the process".

6. It appears that the application for recall of the process was made

in view of the decision of the Supreme Court in A.K. Mathew Vs. State

of Kerala, 1992(1) SCC 217, wherein it was held that even after the

issue of a process in a summons case, the accused can approach the

Magistrate for recalling of the process and Magistrate on being satisfied

on reconsideration of the complaint, had discretionary powers to order

dropping of the proceedings against the accused instead of the

proceedings under Chapter XX. Relying on this judgment, several

applications were filed in several cases in various Courts of the

Magistrate for recall of the process. In some of the cases, process was

even recalled by the Magistrates.

7. In Adalat Prasad Vs. Rooplal Jindal & ors, (2004)7 SCC 338, a

larger Bench of the Supreme Court overruling its earlier decision in

K.M. Mathew (supra) has observed

"6. The High Court did not examine whether the complainant has or has not made out a case against

the Chief Editor. The High Court rested its conclusion solely on the procedural requirements of

the trial of a summons case. It has been pointed out that in any private complaint triable as a summons case the Magistrate, after taking

cognizance of the offence and issuing process, has no jurisdiction to drop proceedings against the accused. He is bound to proceed under Chapter XX

of the Code of Criminal Procedure when the

accused enters appearance. He will have to state the particulars of the offence and record the plea of

the accused. When the accused pleads not guilty, he will have to hear the prosecution and take all such evidence produced in support of the

prosecution. Then he will have to hear the accused

and take all such evidence produced in support of the defence. The High Court went on to state that the question of conviction or acquittal will arise

only after recording evidence of the parties. There is no question of discharging the accused at an intermediate stage. There is no provision in the

Code for dropping the proceedings against any accused".

8. In view of the law laid down by the Supreme Court in the

case of Adalat Prasad (supra) it is not open for an accused, even in a

summary case, to apply for recall of the process. If at all the accused

feels aggrieved by an order of issuance of the process in a summary

trial, the remedy open to him is to approach the High Court under

section 482 of the Code of Criminal Procedure and that of course, is

without prejudice to any other remedy which the accused may have

under Article 226/227 of the Constitution of India. An accused

aggrieved by the order of issuance of process by the Magistrate cannot

approach the same Magistrate again with the prayer for recalling of the

process. The application dated 30th July 1998 made by the present

petitioner - accused no.4 before the Magistrate was for recalling of the

process was clearly not maintainable in view of the decision of the

Supreme Court in Adalat Prasad (supra).

9. Mr.Marwadi, learned counsel appearing for the petitioner

submitted that when the application was made by the petitioner, the

law laid down by the Supreme Court in the case of A.K. Mathew (supra)

was applicable. He submitted that the decision of Adalat Prasad

(supra) cannot apply retrospectively and the application dated 30th July

1998 cannot be rejected by applying retrospectively the law laid down

by the Supreme Court in the case of Adalat Prasad(supra). The

submission cannot be accepted. Unlike a legislation which acts

prospectively, unless it is made retrospective, the judgments of the

Court are retroactive. The Court does not legislate, it only interpretes

the legislation which is already in existence. The interpretation made

by the Court is of an existing law and applies from the date the law

came in force and not from the date on which the decision is rendered.

The decision of the Supreme Court in the case of Adalat Prasad (supra)

would therefore apply to the application made on 30th July 1998 on

which the impugned order was passed.

10. For these reasons there is no merit in the application which is

hereby dismissed.

(D.G. KARNIK,J.)