Madras High Court
M/S. Hdfc Bank Limited vs Sri Scorpion Racers Private ... on 4 April, 2022
Crl.OP.No.2404 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.04.2022
CORAM:
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Crl.O.P.No.2404 of 2019
M/s. HDFC Bank Limited
Represented by its
Legal Officer, Tr.Anbarasan,
CEEBROS Building ... Petitioner
Vs.
Sri Scorpion Racers Private Limited
C/o. Mr.S.Balasubramanian ... Respondent
PRAYER: Criminal Original petition has been filed under Section 482 of
Cr.P.C, prayed to call for the records in C.M.P.No.3106 of 2018 in
C.C.No.8976 of 2017 pending on file of the Ld.Metropolitan Magistrate,
FTC – III at Saidapet, Chennai, and set aside the same.
For Petitioner : Mr.R.Vivekananthan
For Respondent : Mr.K.S.Karthik Raja
ORDER
This Criminal Original Petition has been filed to set aside the order of
the learned Metropolitan Magistrate, FTC – III at Saidapet, Chennai in
C.M.P.No.3106 of 2018 in C.C.No.8976 of 2017 dated 20.12.2018.
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Crl.OP.No.2404 of 2019
2. The learned counsel for the Petitioner submits that by clerical error
of the learned counsel for the complainant before the trial Court a petition
under Section 257 of Cr.P.C., had been filed wherein it is stated as follows:
“That the complainant and Accused have reached to an
amicable settlement in the above case.
That in the aforesaid circumstances the complainant those
not intent to prosecution the Accused.
It is therefore most respectfully prayed that this Hon'ble
Court may be pleased to permit to withdraw the complaint and
may also to acquit the accused”
The above petition was accepted by the trial Court and the complainant was
permitted to withdraw the same. Subsequently, the learned counsel for the
complainant came to know about the same, the next day itself, he had filed a
petition to restore the complaint and the same was refused by the learned
Magistrate. Hence this petition had been filed.
3. Further learned counsel for the Petitioner submits that the
Respondent can very well dispute the fact whether the matter was amicably
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Crl.OP.No.2404 of 2019
settled or not. As per the learned counsel for the Petitioners, the subject
matter of the complaint under Section 138 of Negotiable Instruments Act
was not settled. The Respondent is aware of it. The inadvertence caused in
filing the petition was by the Advocate Clerk attached to the Office of the
learned Counsel for the complainant before the Court. The learned
Metropolitan Magistrate -Fast Track Court-3, Saidapet had dismissed the
case. The learned Judicial Magistrate did not accept the petition filed by the
Petitioner seeking to recall the earlier Order on the ground that the Court
had become “Functus Officio”. Therefore, the defacto complainant had filed
this petition invoking the powers of the High Court under Section 482 of
Cr.P.C.,
4. In support of his arguments, the learned counsel for the Petitioner
relies on the ruling of the Hon'ble Punjab & Haryana High Court reported in
Indian Kanoon-http://indiankanoon.org/doc/159042343/ in the case of
the Nirmal Singh Vs. M/s. Rama Krishna Finance and another ruling of
the Hon'ble Supreme Court reported in (2011) 14 SCC 813 in the case of
Vishnu Agarwal Vs. State of Uttar Pradesh and another. The learned
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Crl.OP.No.2404 of 2019
counsel for the Respondent submits that the Petitioner ought to have filed
regular appeal against the order passed by the learned Metropolitan
Magistrate, Fast Track Court, Saidapet instead of filing Crl.O.P invoking the
power of the Court under Section 482 of Cr.P.C.,
5. The learned counsel for the Petitioner/complainant relied on the
ruling of the Hon'ble Supreme Court reported in (2011) 14 SCC 615 in the
case of Punjab State Warehousing Corporation, Faridkot Vs. Shree
Durga Ji Traders and others wherein at paragraph Nos.9,11 and 12, it has
been held as follows:
“9. The short question that falls for consideration is
whether in the fact situation the High Court was justified in
declining to exercise its jurisdiction under Section 482 of the
Code?
11. Bearing in mind the aforestated legal position in
regard to the scope and width of the power of the High Court
under Section 482 of the Code, we are of the opinion that the
impugned decision is clearly indefensible. As noted above, the
High Court has rejected the petition under Section 482 of Code
on the ground of availability of an alternative remedy without
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Crl.OP.No.2404 of 2019
considering the seriousness of the nature of the offences and the
fact that the trial Court had dismissed the complaint on a
hypertechnical ground viz., since the complainant had been
appearing in person, despite the order dated 16.04.1999,
exempting him from personal appearance, the said exemption
order became redundant and the complainant should have ought
a fresh exemption from personal appearance. We feel that such
a view defies any logic. An order of exemption from personal
appearance continues to be in force till it is revoked or recalled.
12. We are convinced that in the instant case, rejection of
the appellant's petition under Section 482 of the Code has
resulted in miscarriage of justice. Availability of an alternative
remedy of filing an appeal is not an absolute bar in entertaining
a petition under Section 482 of the Code. As aforesaid, one of
the circumstances envisaged in the said section, for exercise of
jurisdiction by the High Court is to secure the ends of justice.
Undoubtedly, the trial Court had dismissed the complaint on a
technical ground and therefore, interests of justice required the
High Court to exercise its jurisdiction to set aside such an order
so that the trial Court could proceed with the trial on merits.”
As per the reported ruling of the Hon'ble Supreme Court, the fact that
regular appeal is the only remedy cannot be a ground to deny the relief
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Crl.OP.No.2404 of 2019
under Section 482 of Cr.P.C., its inherent power of High Court to prevent
miscarriage of justice or to prevent abuse of process of Court. Here, as per
the submission of the learned counsel for the Petitioner that the Petitioner
who is the complainant before the learned Metropolitan Magistrate, FTC -III
, Saidapet filed a complaint under Section 138 of Negotiable Instruments
Act. He filed a petition under Section 257 of Cr.P.C., to withdraw the
complaint. Based on which, the Court had dismissed the complaint as
withdrawn. Subsequently, he had filed a petition to restore the complaint on
the ground that the error was committed by the Advocate Clerk. However it
was rejected by the learned Metropolitan Magistrate on the ground that the
Criminal Court does not have power to recall its own Judgment/Order is
found acceptable. That is why the Petitioner/Complainant preferred this
petition under Section 482 of Cr.P.C.,
6. The learned counsel for the Respondent/Accused submitted that the
Petitioner ought to have filed a regular appeal instead of filing petition under
Section 482 of Cr.P.C., Only to counter the same, the ruling of the Hon'ble
Supreme Court had been relied on by the learned counsel for the Petitioner.
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Crl.OP.No.2404 of 2019
7. In the light of the reported ruling cited today by the learned counsel
for the Petitioner/Complainant, this Criminal Original Petition is allowed.
The Order passed by the learned Metropolitan Magistrate, FTC – III,
Saidapet, Chennai in C.M.P.No.3106 of 2018 in C.C.No.8976 of 2017 dated
20.12.2018 is set aside. The private complaint under Section 138 of
Negotiable Instruments Act is restored on the file of the learned
Metropolitan Magistrate, FTC – III, Saidapet, Chennai. The learned
Metropolitan Magistrate is directed to proceed with the trial and dispose of
the case as early as possible.
04.04.2022
dh
Index: Yes/No
Internet: Yes/No
Speaking Order/Non Speaking Order
To.
1. The Sub-Inspector of Police,
Reddiyarpalayam Police Station,
Puducherry.
2. The Public Prosecutor,
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Crl.OP.No.2404 of 2019
High Court, Chennai.
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Crl.OP.No.2404 of 2019
SATHI KUMAR SUKUMARA KURUP.,J.
dh
Crl.O.P.No.2404 of 2019
04.04.2022
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