Bombay High Court
M/S Primus Infraproject Private ... vs M/S Capital First Ltd. Thr. ... on 12 July, 2017
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APL) NO.20/2017
1. M/s. Primus Infraproject Pvt. Ltd.
Having its office at Plot no. 2,
Gupta House, Museum Road, Civil Lines,
Nagpur, through applicant no.2.
2. Kamal Kumar Kothari,
Director, M/s. Primus Infraproject
Pvt. Ltd. r/o Plot No.2, Near Gupta House,
Museum Road, Civil Lines, Nagpur. .....APPLICANTS
...V E R S U S...
M/s. Capital First Ltd, through
its Assistant Manager, Having its
Branch office at Block No. 201,
Plot No.64B, Salwalk Manor Complex,
VIP Road, New Ramdaspeth, Nagpur. ...NON APPLICANT
AND
CRIMINAL APPLICATION (APL) NO.21/2017
1. M/s. Primus Infraproject Pvt. Ltd.
Having its office at Plot no. 2,
Gupta House, Museum Road, Civil Lines,
Nagpur, through applicant no.2.
2. Kamal Kumar Kothari,
Director, M/s. Primus Infraproject
Pvt. Ltd. r/o Plot No.2, Near Gupta House,
Museum Road, Civil Lines, Nagpur. .....APPLICANTS
...V E R S U S...
M/s. Capital First Ltd, through
its Assistant Manager, Having its
Branch office at Block No. 201,
Plot No.64B, Salwalk Manor Complex,
VIP Road, New Ramdaspeth, Nagpur. ...NON APPLICANT
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Mr. Sunil Manohar, Senior Advocate with Mr. A. H. Lohiya, Advocate
for applicants.
Mr. Anil Mardikar, Senior Advocate with Mr. S. G. Joshi, Advocate
for non applicant.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 12.07.2017
ORAL JUDGMENT
1. Rule. Rule is returnable forthwith. Heard finally by
consent of the parties.
I have heard the detailed submissions of Mr. Sunil
Manohar, learned Senior Counsel for the applicants and Mr. Anil
Mardikar, learned Senior Counsel for the non applicant.
Though various submissions were advanced before this
Court, after hearing the elaborate submissions of both the learned
counsel, I am of the view that both these applications can be
disposed of at this stage itself.
2. The non applicant preferred two different cases seeking
the prosecution of the non applicant for an offence punishable
under Section 138 of the Negotiable Instruments Act. One of such
cases is registered as Summary Criminal Case No.16985/2015 that
gives rise to Criminal Application No.20/2017 and the other case
which is registered as Summary Criminal Case No.16984/2015
that gives rise to Criminal Application No. 21/2017.
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3. Undisputedly, on 12.01.2016, the learned Magistrate
issued process against the applicants for an offence punishable
under Section 138 of the Negotiable Instruments Act. Pursuant to
the process issued against the applicants, they appeared before the
Court of learned Magistrate. During the pendency of these two
cases, an application was filed on behalf of the applicant no.2
styled as "Application under auxiliary powers of the court for
quashing of the complaint." The said application was moved on
08.11.2016. In my view, the learned Magistrate has rightly
rejected the said application on 25.11.2016. Thereafter on
05.01.2017, an application for personal exemption was moved by
the applicant no.2 before the learned Magistrate. The learned
Magistrate had on 05.01.2017, rejected the said application and
also issued non bailable warrant against applicant no,2. After
passing the order below Exh.-36, the present two proceedings
under Section 482 are filed before this Court questioning the order
of issuance of process and also issuance of non bailable warrant.
4. No doubt true that this Court can exercise its power
under Section 482 of the Cr.P.C. for quashing of the order of
issuance of process bypassing the remedy of filing a revision before
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the revisional Court. However, to persuade this Court for
exercising the powers under Section 482 of Cr. P. C. to bypass the
forum of revisional Court, an exceptional case is required to be
made out.
5. After hearing both the learned Senior counsel and after
having gone through the compilations of both these applications
under Section 482 of Cr.P.C., I am afraid that the applicants have
made out a case that this Court should exercise its powers under
Section 482 of the Cr.P.C. without permitting the applicants to
avail the powers of filing the revision before the revisional Court.
6. The applicants in these two proceedings are therefore
directed that they should first approach before the learned
revisional Court to challenge the order of issuance of process
dated 12.01.2016 in respective criminal cases. It is obvious that as
on today, the revision will be barred by limitation. Therefore they
will require to file applications for condonation of delay under the
Limitation Act. It is always open for the learned revisional Court
to decide the said application for condonation of delay in
accordance with the law. However, the revisional Court while
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condoning or refusing to condone the delay has to consider the
period which was lost during the pendency of the proceeding
before this Court in view of Section 14 of the Limitation Act.
7. Insofar as issuance of non bailable warrant is
concerned, in my view, the Magistrate has shown undue haste in
issuing the non bailable warrant especially when on many dates
the applicant no.2 was present and for other dates he was present
through his counsel. On a particular date, the application for
personal exemption was filed. Though it is the discretion of the
learned Magistrate either to grant or not to grant an application
for personal exemption, at the same time, before issuing the non
bailable warrant directly, it is always advisable to the learned
Magistrate to issue a bailable warrant initially and if in spite of
issuance of the bailable warrant the applicant or accused is not
appearing before the learned Magistrate, it is always open for the
learned Magistrate to issue non bailable warrant to procure his
presence.
8. Admittedly, in the present case, before issuance of
present non bailable warrant, bailable warrant was not issued.
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Therefore, in my view, the issuance of non bailable warrant
against the applicant no.2, cannot stand to the scrutiny of law.
In that view of the matter, following order is passed.
ORDER
(i) Criminal Application Nos.20/2017 and
21/2017 are partly allowed.
(ii) The order of issuance of non bailable
warrant against applicant No.2 in Summary Criminal
Case No.16985/2015 and Summary Criminal Case
No.16984/2015 are quashed and set aside.
(iii) The applicants are at liberty to approach
the revisional Court questioning the correctness of the
order of issuance of process dated 12.01.2016 in
Summary Criminal Case No.16985/2015 and
Summary Criminal Case No.16984/2015.
(iv) If the revisions applications are
accompanied with the applications for condonation of
delay, those applications shall be decided by the
revisional Court in accordance with law and also
considering the provisions of Section 14 of the
Limitation Act.
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(v) Ad interim order granted by this Court on
13.01.2017 in both the applications shall remain in
operation for four weeks from today. After expiry of
four weeks, the interim order passed by this Court on
13.01.2017 shall cease to operate.
Rule is made absolute in the above terms.
No order as to costs.
JUDGE
kahale
