2022 (11) TMI 920 - HC - Indian Laws

Dishonor of Cheque - complainant failed to comply with the mandatory provision as laid down under the N.I. Act as the notice was not served upon the accused persons - Reversal of order of acquittal passed by learned Metropolitan Magistrate - maintainability of impugned judgement in view of statutory mandate expounded under Sub-Section 3 of Section 401 of Criminal Procedure Code - HELD THAT - In view of the statutory mandate expounded under Sub-Section 3 of Section 401 of Criminal Procedure Code the impugned judgement cannot be allowed to remain in force. Under the Code of Criminal Procedure specific provision is there to prefer appeal against the order of acquittal under Section 378. Therefore, in view of the judgement pronounced in the case of MADHU LIMAYE VERSUS STATE OF MAHARASHTRA 1977 (10) TMI 111 - SUPREME COURT there is no room for this Court to invoke the inherent jurisdiction to consider the order of acquittal passed by learned Trial Court, while dealing with an application under Section 482 of the Cr.P.C. challenging the legality of another judgement. While acknowledging the constitutional right of the litigants to have speedy jusice, Court should not and cannot pass any order that runs counter to the intention of the legislature as reflected in statutory provision. However, when it is found that the Opposite Party/complainant was prosecuting with due diligence with another prosecution the benefit of Section 470 of Criminal Procedure Code may be extended - while refusing to imbibe myself with the argument of Mr. Hussain, I am inclined to give liberty to the Opposite Party No. 1, if any application is filed under Section 378 of the Criminal Procedure Code before the appropriate Court having jurisdiction, challenging the order of acquittal within 30 days from this day in that event learned Appellate Court shall consider the application for appeal keeping in mind the provision of Section 470 of the Criminal Procedure Code. The criminal revision is disposed of.

Summary

Issues Involved:
Challenge to judgment converting acquittal into conviction under Section 482 of Cr.P.C. with reference to N.I. Act Section 138/141.

Analysis:
1. The petitioners issued a cheque in discharge of their liability, which was returned due to insufficient funds. The complainant sent a notice, but the Trial Court acquitted the accused due to improper service of notice.

2. The City Sessions Court reversed the acquittal, convicting the accused and imposing a fine. The petitioners challenged this order under Section 482 of Cr.P.C., alleging a miscarriage of justice.

3. The petitioners argued that revisional jurisdiction cannot convert acquittal into conviction under Section 401(3) of Cr.P.C. The opposite party contended that 'Not claimed' on the notice envelope constitutes good service.

4. The opposite party invoked Section 482 of Cr.P.C. to rectify any perceived wrong by the Trial Court, citing precedents like PIGOT VS. ALL MUHAMMAD MONDAL and MADHU LIMAI VS. STATE OF MAHARASHTRA to support the exercise of inherent powers of the High Court.

5. The judgment noted that Section 482 of Cr.P.C. saves the inherent powers of the High Court to prevent abuse of process or secure justice. However, the Court emphasized that such powers should be sparingly used and not against specific provisions in the Code.

6. Referring to Section 470 of Cr.P.C., the Court excluded time for due diligence in prosecuting another case. The judgment highlighted the importance of respecting legislative intent and statutory provisions while ensuring speedy justice.

7. The Court concluded by disposing of the criminal revision, allowing the opposite party to file an appeal under Section 378 within 30 days. It directed the Trial Court to be informed of the judgment and provided for the parties to obtain certified copies promptly.