9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (8) TMI 476 - HC - Indian LawsDishonor of Cheque - legally enforceable debts - Rejection of application of the Petitioners for recall of process issued under Sections 138 of the Negotiable Instruments Act, 1881 - Section 204 of Cr.P.C. - HELD THAT - The Supreme Court in the case of ADALAT PRASAD VERSUS ROOPLAL JINDAL OTHERS 2004 (8) TMI 647 - SUPREME COURT held that, the Court, who has issued process, has no power of review its order of issuance of process, and hence order of issuing process cannot be recalled. In the present case, petitioner preferred an application for recalling the order of issuance of process passed by the learned Magistrate, which was not tenable in view of law laid down in the case of Adalat Prasad. Hence, the application preferred by the petitioner was not maintainable. The issue of maintainability of the application filed by the petitioner under Section 204 of the Cr.P.C. goes to the root of the matter, in as much as, the application filed by the petitioners itself was not maintainable in law and therefore, adjudication of such application by the Courts below was not called for being not maintainable - petition dismissed.
Issues:
1. Application for recall of process under Section 138 of the Negotiable Instruments Act, 1881. 2. Maintainability of the application filed under Section 204 of the Cr.P.C for recalling the order of issuance of process. Analysis: 1. The petitioners challenged the order of issuance of process under Section 138 of the Negotiable Instruments Act, 1881. The complaint alleged that the petitioners failed to pay for oil supplied, resulting in dishonored cheques. The petitioners argued that they did not sign the cheques and were not obligated to pay. They contended that no tripartite agreement existed, and the cheques were not issued to discharge any legal dues. Citing a Supreme Court case, the petitioners claimed that the essential elements for an offense under Section 138 were not met. However, the courts found that the petitioners' application for recall of process was not maintainable under Section 204 of the Cr.P.C. The courts held that the order of issuing process could not be reviewed, following the precedent set in Adalat Prasad v. Rooplal Jindal. Therefore, the petitioners' application was dismissed, and they were advised to contest the proceedings before the trial court. 2. The issue of maintainability of the application under Section 204 of the Cr.P.C was crucial to the judgment. The courts emphasized that the power to review the order of issuance of process was not vested in the court that issued the process. Citing the case of Adalat Prasad v. Rooplal Jindal, it was established that the court lacked the authority to recall the order of issuance of process. Therefore, the application filed by the petitioners for recalling the process was deemed not maintainable. Despite other grounds raised by the petitioners, the courts concluded that the application's lack of maintainability rendered further adjudication unnecessary. The judgment highlighted the importance of adhering to legal precedents and dismissed the writ petition, emphasizing that the petitioners would have the opportunity to present their case before the trial court.
|
