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TMI Blog2003 (7) TMI 645X X X X Extracts X X X X X X X X Extracts X X X X ..... of the summoning order for the offence punishable under Section 138 of the Negotiable Instrument Act vide order dated 26-4-2003 by conveniently taking the shelter under the judgment of this Court delivered in Mohd. Hashim Masood v. State, 2000 (1) JCC 24 as if he was bound by the view taken by the High Court and not by the Supreme Court on the proposition of law whether the accused is entitled to move the Magistrate for dropping the proceedings in a complaint case even after the process of summon has been issued against him. 2. Facts germane for the proposition of law are like this :- M/s. SBI Capital Markets Ltd. filed a complaint under Section 138 of Negotiable Instrument Act against M/s. Prakash Industries Ltd Ors its Managing Dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocess has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused. 3. After taking notice of this judgment the learned ASJ referred to Nilamani Routray v. Bennel Coleman and Company Ltd., 1998 (8) SCC 594 a case that came up before the Hon ble Supreme Court on the question of power of trial court in this regard. Learned ASJ has referred to the following observations of the Supreme Court :- It has been contended on behalf of the appellant that K.M. Mathew Case requires reconsideration for it is settled law that a power of review has to be conferred by law specifically or by necessary implication and the Code of Criminal Procedure does not confer su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing on all the Courts in India including the High Courts. Mere reference by a Judge for reviewing the existing law to a Larger Bench does not and cannot take away the binding effect of the earlier decision of the Supreme Court. 6. It is not that the learned ASJ did not know or was not conscious of this principle. He did refer to Article 141 of the Constitution of India providing that the law declared by Supreme Court shall be binding on all courts within the territory of India and learned ASJ even observed that a law laid down by Supreme Court cannot be assailed on the ground that certain aspects were not considered by or that the judgment suffers from any infirmity by not giving proper reasons or over ruling earlier decision. Thus it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned ASJ was fully conscious of not only the law of the land but also the Constitutional provisions that the law laid down by the Supreme Court is binding on all the Courts below it including the High Courts and if any High Court has laid down a law contrary to that of the Supreme Court, law laid down by the Supreme Court alone is binding, still he sidetracked it by clutching a flimsy straw that judicial discipline requires him to follow the judgment of his own High Court. Such an approach is not only an act of judicial indiscipline but verges on contempt of Court also. 10. Let us see how the facts and circumstances of the case before the learned ASJ were different than the facts in K.M. Mathew s case. In the instant case, summons we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solely on the procedural requirements of the trial of a summons case by holding that in any private complaint triable as a summons case the Magistrate after taking cognizance of the offence and issuing process has no jurisdiction to drop the proceedings against the accused. This view of the High Court did not find favour with the Supreme Court. Supreme Court held that the order issuing the process is an interim order and not a judgment and therefore the order issuing the process can be varied and recalled and the fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused. 13. It is beyond even wildest imagination and comprehensio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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