Delhi High Court
Smt. Phool Chawla W/O. Shri. S.C. ... vs The State Of N.C.T Of Delhi And ... on 12 December, 2007
Author: V Gupta
Bench: V Gupta
JUDGMENT
V.B. Gupta, J.
1. Present petition has been filed under Section 482 Cr.P.C. seeking quashing of the complaint case No. 252/1/02 pending in the court of A.C.M.M., New Delhi.
2. Respondent No. 2 herein had filed a complaint under Section 56 of the Foreign Exchange Regulation Act, against M/s. Amar Taran Exports and the petitioner herein amongst others, for violation of provisions of Section 18 (2) and (3) of Foreign Exchange Regulation Act.
3. In those proceedings, one of the accused persons namely Smt. Anita Kathuria filed an application for discharge and proceedings against her were dropped vide order dated 20th January, 03, passed by ACMM.
4. Thereafter, on 20th January, 2007, ACMM passed orders for framing of charges for contravening Sections 18(2) & (3) of Foreign Exchange Regulation Act against the present petitioner, as well as other co-accused persons.
5. Admittedly, as per record, no appeal or revision has been preferred by the present petitioner, against that order.
6. Now, in the present petition, it has been stated that another similarly placed accused person against whom similar allegations have been made i.e. Smt. Anita Kathuria, has been discharged and proceedings against her have been dropped. The case of the petitioner is similar to that of Smt. Anita Kathuria and the continuance of the case against the petitioner is contrary to the dictum of the Apex Court and as per evidence conducted in the Court, there is a sufficient material to prima-facie give rise to the fact that the petitioner was not involved in the day to day affairs of the firm and petitioner could not be vicariously be deemed to be responsible for day to day affairs of the concern. The only role assigned to the petitioner in the partnership deed was that of a partner for investment and petitioner was not a working partner and thus present proceedings are liable to be quashed.
7. The trial court has considered all the submissions which have been raised in the present petition at the time of passing of order on charge on 20th January, 2007. Admittedly, no appeal or revision has been filed against that order.
8. It is well-settled that inherent powers under Section 482 Cr.P.C. can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided in the statute. If a matter is covered by an express letter of law, the court cannot give a go-by to the statutory provisions and instead evolve a new provision in the garb of inherent jurisdiction. When there is an express provision barring a particular remedy, the Court cannot resort to exercise of inherent power. Where the petitioner has an alternative remedy of provision before the High Court, petition under Section 482 Cr.P.C., does not lie.
9. In the present case, petitioner had an alternative remedy available to him by way of revision through which he could have challenged the order framing of charge but admittedly, petitioner did not challenge that order of framing of charge and instead has filed this petition, and that too only after the period of limitation, has expired, for challenging order on charge.
10. Recently, the Apex Court has laid down that powers under Section 482 Cr.P.C. are to be exercised sparingly and in rarest of rare cases. In Pratibha v. Rameshwari Devi and Ors. III (2007) DLT (Crl.) 963, it has held that:
Power under Section 482 Cr.P.C. are to be exercised sparingly and in rarest of rare case. It has been further laid down that for the purpose of finding out commission of cognizable office, High Court is only required to look into allegations made in the complaint or FIR and conclude whether prima facie offence is made out by the complainant in FIR or complaint or not.
11. So, after going through the record of this case, as charges in this case have already been framed against the petitioner and trial is going on, all the pleas which the petitioner has taken in the present petition, can be taken up by him in his defense.
12. Under these circumstances, since the petitioner had an alternative remedy available to him, present petition under Section 482 Cr.P.C. is not maintainable and the same is hereby dismissed with cost of Rs. 5,000/-.
13. The cost of Rs. 5,000/- be deposited by the petitioner with the trial court within one month from today failing which the trial court shall recover the same in accordance with law.
