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2019 (8) TMI 118 - HC - Indian LawsMaintainability of petition - recall of order of issuance of process - Dishonor of Cheque - insufficiency of funds - Section 138 of the N.I.Act - HELD THAT - It appears that the learned Magistrate passed the order of issuance of process against the petitioner on 28.04.1993. Admittedly, the said order was never challenged by the petitioner. However, the petitioner challenged the order of recording the plea passed by the learned Magistrate. However, an application preferred by the petitioner challenging the order of recording the plea was rejected by the learned Magistrate. It appears that being aggrieved, the petitioner filed revision before the Sessions Court, Pune. However, it has been rightly observed by the Sessions Court that revision was not maintainable, and accordingly the said revision was rejected. It appears that in the year 2002, the petitioner filed an application for recalling the order of issuance of process passed by the learned Magistrate on 28.04.1993. Therefore, there was delay of more than 9 years for filing application for recalling the order of issuance of process. The said delay has not been explained by the petitioner - Thus, the application filed by the petitioner for recalling the order of issuance of process was not maintainable and, therefore, further proceedings, arising out of the said order, initiated by the petitioner are rightly held to be not maintainable by the Sessions Court. The learned Magistrate has rightly concluded that the order of issuance of process cannot be recalled. Secondly, the Sessions Court has rightly concluded that even in absence of firm/company as a party to the complaint, keeping in averments made in the complaint, the petitioner can be prosecuted. Admittedly, there was delay of more than 9 years in filing the application for recalling the order of issuance of process. Petition dismissed.
Issues Involved:
1. Maintainability of the application for recalling the order of issuance of process. 2. Requirement of prosecuting the firm/company under Section 138 read with Section 141 of the Negotiable Instruments Act (N.I. Act). 3. Delay in filing the application for recalling the order of issuance of process. 4. Vicarious liability of the petitioner as a partner of the firm. Issue-Wise Detailed Analysis: 1. Maintainability of the Application for Recalling the Order of Issuance of Process: The petitioner filed an application below exhibit 51 in Criminal Case No. 1566 of 1993 for recalling the order of issuance of process passed by the learned Magistrate on 28.04.1993. The learned Judicial Magistrate First Class, Pune, rejected this application. The petitioner then filed a Criminal Revision Application No. 499 of 2003, which was also dismissed by the Additional Sessions Judge, Pune. The court referred to the Supreme Court's decision in Adalat Prasad versus Rooplal Jindal and others (2004) 7 SCC 338, which held that the court issuing the process has no power to review its order of issuance of process. Consequently, the application for recalling the order of issuance of process was deemed not maintainable. 2. Requirement of Prosecuting the Firm/Company under Section 138 read with Section 141 of the N.I. Act: The petitioner argued that the complaint was not maintainable as the firm, M/s. Jaihind Construction Corporation, was not made a party to the complaint, and no notice was issued to the firm. The court, however, found that the petitioner, as a partner of the firm, was vicariously liable under Section 141 of the N.I. Act. The court referred to the Supreme Court judgment in Anil Hada Vs. Indian Acrylic Ltd. 2000 (1) ALL MR 722, which established that even if the company is not prosecuted, its other persons cannot escape liability created through the legal fiction envisaged under Section 141 of the N.I. Act. The court noted that the complaint clearly mentioned that the accused was a partner of the firm, and thus, the complaint was maintainable. 3. Delay in Filing the Application for Recalling the Order of Issuance of Process: The petitioner filed the application for recalling the order of issuance of process after a delay of more than 9 years. The court observed that the delay was not explained by the petitioner. The court emphasized that such a significant delay in filing the application rendered it untenable. 4. Vicarious Liability of the Petitioner as a Partner of the Firm: The petitioner contended that there were no averments in the complaint indicating that the petitioner was acting on behalf of the firm or that the offence was committed by the partnership firm. The court, however, found that the complaint did allege that the petitioner was a partner of the firm and that the cheques were issued by the partnership firm. The court concluded that the petitioner, being a partner, was vicariously liable for the acts done by the firm. Conclusion: The court concluded that the application for recalling the order of issuance of process was not maintainable due to the lack of review powers with the subordinate criminal courts, as established in Adalat Prasad (supra). The court also held that the complaint was maintainable against the petitioner, even in the absence of the firm as a party, due to the vicarious liability under Section 141 of the N.I. Act. The significant delay of more than 9 years in filing the application further weakened the petitioner's case. Thus, the petition was devoid of merits and was rejected.
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