Gujarat High Court
Rajendrakumar Prahladbhai Tekriwal vs Rajesh Chunilal Jain & on 20 July, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/12661/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (RECALL) NO. 12661 of 2015
In SPECIAL CRIMINAL APPLICATION NO. 599 of 2015
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RAJENDRAKUMAR PRAHLADBHAI TEKRIWAL....Applicant(s)
Versus
RAJESH CHUNILAL JAIN & 1....Respondent(s)
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Appearance:
MR DIPEN C SHAH, ADVOCATE for the Applicant(s) No. 1
MR MANTHAN BHATT, ADVOCATE for the Respondent No.1
MR KL PANDYA, APP for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 20/07/2015
ORAL ORDER
RULE returnable forthwith. Mr.Manthan Bhatt, the learned advocate waives service of notice of rule for and on behalf of the respondent no.1. Mr.K.L.Pandya, the learned APP waives service of notice of rule for and on behalf of the respondent no.2 - State of Gujarat.
By this application, the applicant - original accused and respondent no.2 in the main writ-application prays to recall the order passed by this Court dated 28th April 2015 in the Special Criminal Application No.599 of 2015 being passed in breach of the principles of natural justice.
The main writ-application was filed by the opponent no.1 Page 1 of 11 R/CR.MA/12661/2015 ORDER herein - original complainant calling in question the legality and validity of the order dated 24th December 2014 passed by the 4th Additional District and Sessions Judge, Vadodara, in Criminal Revision Application No.186 of 2014.
This Court upheld the challenge of the opponent no.1 herein. By order dated 28th April 2015, the petition was allowed and the impugned order was ordered to be quashed and set- aside. The order reads thus :
"1 Rule returnable forthwith. Ms. Chandarana the learned additional public prosecutor wavies service of notice of rule for and on behalf of the respondent No.1 the State of Gujarat. It appears from the affidavit filed by the applicant herein the original complainant that the respondent No.2 the original accused has refused to accept the notice issued by this Court.
2 By this application under Article 227 of the Constitution of India, the applicant the original complainant has prayed for the following reliefs:
7a) Your Lordships may be pleased to admit the petition.
b) Your lordship may be pleased to allow this Special Criminal Application and issue any appropriate writ, order or direction and thereby quashed and set aside the order dated 24/12/2014 passed by the 4th Add. District and Sessions Judge, Vadodara in Criminal Revision Application No.186 of 2014.
c) Your Lordship pleased to stay the execution, implementation and operation of the order dated 24/12/2014 passed by the 4th Add. District and Sessions Judge, Vadodara in Criminal Revision Application 186 of 2014, till pending admission, hearing and final disposal of this petition;
d) Alternatively, Your lordship may be pleased to pass any appropriate order, direct and/or writ for Page 2 of 11 R/CR.MA/12661/2015 ORDER expedite completion of trial of the criminal complaint no.282/2005, pending before Ld. Add.
Chief Judicial Magistrate, Vadodara.
e) Your Lordships may be pleased to grant any other and further relief as deemed just and proper in the interest of justice.
3 The applicant herein lodged a private complaint in the Court of the learned Judicial Magistrate, First Class, Vadodara for the offence punishable under Section 138 of the Negotiable Instruments Act, which came to be registered as the Criminal Case No.282 of 2005.
4 It appears from the materials on record that at the fag end of the trial i.e. at the stage of the recording of the further statement of the accused, an application came to be filed before the trial Court Exh.123 with a prayer that the cheque in question be sent for the handwriting experts opinion since except the signature of the accused on the cheque, the other writings on the body of the cheque were disputed by the accused. The application Exh.123 was adjudicated by the trial Court and vide order dated 10.11.2014, the same was ordered to be rejected with costs of Rs.10,000/-.
5 The accused being dissatisfied with the order passed by the learned Magistrate challenged the order before the Sessions Court by filing the Criminal Revision Application No.186 of 2014. The learned 4th Additional Sessions Judger, Vadodara, vide order dated 24.12.2014 allowed the revision application and thereby, quashed and set aside the order passed by the learned Magistrate rejecting the application Exh.123.
6 Being dissatisfied, the applicant the original complainant has come up with this application.
7 Mr. Manthan Bhatt, the learned advocate appearing for the applicant submitted that the learned Sessions Judge committed a serious error in allowing the revision application and passing the impugned order. Mr. Bhatt submitted that once the signature of the accused is not in dispute, whether the other writings on the body of the cheque are of the handwritings of the accused or not is Page 3 of 11 R/CR.MA/12661/2015 ORDER not of much significance. He submitted that had it been a case of the accused that his signature on the cheque was forged, then probably the accused would be justified in asking the court to refer the cheque for the opinion of the handwriting expert.
8 He submitted that these all are dilatory tactics adopted by the accused only with a view to delay the trial. He submitted that the impugned order deserves to be quashed.
9 Having heard the learned advocate appearing for the applicant and having gone through the materials on record, the only question that falls for my consideration is whether the Court below committed any error in passing the impugned order.
10 The following facts are not in dispute:
10.1 The complaint is of the year 2005.
10.2 At no point of time till the conclusion of the cross examination of the complainant, the issue with regard to the handwriting on the cheque was raised by the accused.
10.3 It appears that the cross-examination of the complainant got over in the year 2013. Thereafter, the accused failed to remain present before the trial Court. It is only when the non-bailable warrants were issued, the accused appeared before the Court. No sooner, he appeared before the trial Court pursuant to the non-
bailable warrants, then he filed an application Exh.123.
11 I am of the view that the discretion exercised by the learned Sessions Judge could not be termed as judicious. I find substance in the submissions of the learned advocate Mr. Bhatt that these are all dilatory tactics being adopted by the accused. On one ground or the other, the accused is not allowing the trial Court to proceed further with the matter and conclude the trial.
12 In the result this application is allowed. The impugned order passed by the learned Sessions Judge dated 24.12.2014 is hereby quashed. The order passed by the learned Magistrate dated 10.11.2014 below Exh.123 is hereby confirmed.
13 The trial Court is directed to proceed further with the Page 4 of 11 R/CR.MA/12661/2015 ORDER Criminal Case No.282 of 2005 expeditiously and see to it that the same is disposed of on or before the 31 st July 2015.
14 Rule is made absolute. Direct service is permitted."
It is the case of the applicant herein - original accused that at no point of time he was served with the notice issued by this Court in the Special Criminal Application No.599 of 2015. It is his case that in fact the address shown in the cause- title of the main writ-application by itself is not correct because the applicant is not residing at the said address past five years.
Mr.Vaghela, the learned advocate appearing on behalf of Mr.Dipen Shah for the applicant, submitted that this Court had not issued notice to be served under Rule 89 of the Gujarat High Court's Rules, 1993. Rule 89 of the Rules provides for the ordinary service of the notice. According to Mr.Vaghela, direct service was permitted under Rule 90A of the Rules, 1993, which is an additional mode of service. He submitted that in case of the additional mode of service not being effected or being refused, then the Court ought to have issued the notice under Rule 89 and sought compliance of the service of notice under Rule 91 of the Rules, 1993.
The learned advocate appearing for the applicant further submitted that in the direct service affidavit filed on behalf of the opponent no.1, the name of the person to whom the service was tried to be effected and refused has not been stated.
The learned advocate appearing for the applicant further submitted that gross prejudice has been caused to the Page 5 of 11 R/CR.MA/12661/2015 ORDER applicant as he had no opportunity to defend the order which was made the subject matter of challenge before this Court by the opponent no.1 - original complainant. He, therefore, prays that the order be recalled and the matter be heard afresh after giving opportunity of hearing to his client.
On the other hand, this application has been vehemently opposed by Mr.Manthan Bhatt, the learned advocate appearing for the opponent no.1 - original petitioner. He submitted that the order passed by this Court should not be recalled in exercise of the inherent powers under Section 482 of the Code of Criminal Procedure. He pointed out that the notice issued by this Court was tried to be served on the applicant but the same was refused. Mr.Bhatt submitted that once there is a refusal to accept the notice, it is as good as the service of the notice.
Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is, whether the order passed by this Court dated 28th April 2015 should be recalled.
The following facts are not in dispute :
(1) The notice was issued dated 10th February 2015, making it returnable on 5th March 2015.
(2) In the mean time, the impugned order dated 24th December 2014 passed by the Sessions Court in C.R.A. No.186 of 2014 was ordered to be stayed.
(3) The opponent no.1 herein took direct service to be
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R/CR.MA/12661/2015 ORDER
served upon the applicant herein who was respondent no.2 in the main writ-application.
(4) The affidavit of direct service reads as under :
"I, Yogeshkumar A.Dave, aged Adult, is residing at F/9, Vraj-Vihar Soc. Opp. Airport, Harni Road, Vadodara, herein, do hereby solemnly affirm and state on oath as under :
That for above caption petition, petitioner has me to serve the direct notice to Respondents No.2, i.e. Rajesndra Kumar S/o Prahaladrai Tekriwal, as ordered by the Hon'ble High Court of Gujarat, vide order dated 10/2/2015. I undersigned solemnly affirm on oath that I have personally visited the place of Respondent No.2 at the address mentioned the cause title, with the copy of petition, but the available person (does not disclosed his name) "Refused" to take the service of same. I have make my endorsement over the notice accordingly. The copies of notice to respondent No.2 along with the copy of petition, is annexed herewith this affidavit.
I know executing wrong affidavit is criminal offence and I sworn on oath that whatever submitted by me above herein is true to best of my knowledge."
(5) It appears that due to such affidavit of service, the endorsement in the cause list showed "service refused".
(6) In such circumstances referred to above, the Court proceeded to hear the petitioner and passed the order accordingly.
So far as the position of law is concerned, the same has been well-explained by the Supreme Court in the case of State of Punjab v. Davinder Pal Singh Bhullar and others, (2011)14 SCC 770. I may quote the observations made by the Supreme Page 7 of 11 R/CR.MA/12661/2015 ORDER Court in paragraphs 44 to 49 as under :
"44. There is no power of review with the Criminal Court after judgment has been rendered. The High Court can alter or review its judgment before it is signed. When an order is passed, it cannot be reviewed. Section 362 Cr.P.C. is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and is disentitled to entertain a fresh prayer for any relief unless the former order of final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law. The Court becomes functus officio the moment the order for disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. There is also no provision for modification of the judgment. (See: Hari Singh Mann v. Harbhajan Singh Bajwa & Ors., AIR 2001 SC 43; and Chhanni v. State of U.P., AIR 2006 SC 3051).
45. Moreover, the prohibition contained in Section 362 Cr.P.C. is absolute; after the judgment is signed, even the High Court in exercise of its inherent power under Section 482 Cr.P.C. has no authority or jurisdiction to alter/review the same. (See: Moti Lal v. State of M.P., AIR 1994 SC 1544; Hari Singh Mann (supra); and State of Kerala v. M.M. Manikantan Nair, AIR 2001 SC 2145).
46. If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 Cr.P.C. would not operate. In such eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/alteration has to establish that it was not at fault. (Vide: Chitawan & Page 8 of 11 R/CR.MA/12661/2015 ORDER Ors. v. Mahboob Ilahi, 1970 Crl.L.J. 378; Deepak Thanwardas Balwani v. State of Maharashtra & Anr., 1985 Crl.L.J. 23; Habu v. State of Rajasthan, AIR 1987 Raj. 83 (F.B.); Swarth Mahto & Anr. v. Dharmdeo Narain Singh, AIR 1972 SC 1300; Makkapati Nagaswara Sastri v. S.S. Satyanarayan, AIR 1981 SC 1156; Asit Kumar Kar v. State of West Bengal & Ors., (2009) 2 SCC 703; and Vishnu Agarwal v. State of U.P. & Anr., AIR 2011 SC 1232).
47. This Court by virtue of Article 137 of the Constitution has been invested with an express power to review any judgment in Criminal Law and while no such power has been conferred on the High Court, inherent power of the court cannot be exercised for doing that which is specifically prohibited by the Code itself. (Vide: State Represented by D.S.P., S.B.C.I.D., Chennai v. K.V. Rajendran & Ors., AIR 2009 SC 46).
48. In Smt. Sooraj Devi v. Pyare Lal & Anr., AIR 1981 SC 736, this Court held that the prohibition in Section 362 Cr.P.C. against the Court altering or reviewing its judgment, is subject to what is "otherwise provided by this Code or by any other law for the time being in force".
Those words, however, refer to those provisions only where the Court has been expressly authorised by the Code or other law to alter or review its judgment. The inherent power of the Court is not contemplated by the saving provision contained in Section 362 Cr.P.C. and, therefore, the attempt to invoke that power can be of no avail.
49. Thus, the law on the issue can be summarised to the effect that the criminal justice delivery system does not clothe the court to add or delete any words, except to correct the clerical or arithmetical error as specifically been provided under the statute itself after pronouncement of the judgment as the Judge becomes functus officio. Any mistake or glaring omission is left to be corrected only by the appropriate forum in accordance with law. "
Page 9 of 11R/CR.MA/12661/2015 ORDER The affidavit of direct service does not inspire much confidence. It is not made clear by the deponent as to who was the person on whom he had tried to serve the notice and was refused.
Besides the above, it appears that the deponent had gone to serve the notice at the address which has been shown in the cause-title of the memo of the petition but, according to the applicant, he had already vacated that premises five years back.
The picture appears to be quite hazy and, therefore, I am of the view that one opportunity should be given to the applicant to make his submissions so far as the challenge of the opponent no.1 herein to the order of the Sessions Court is concerned.
I am told that the trial is at the fag end. Probably, it is for the pronouncement of the judgment and once the judgment is pronounced, then this application for recalling of the order will become infructuous.
In the aforesaid view of the matter, this application is allowed. The order dated 28th April 2015 passed by this Court in the Special Criminal Application No.599 of 2015 is hereby recalled and the main matter is revived, with a view to give an opportunity of hearing to the applicant herein.
Since the trial is now at the stage of pronouncement of the judgment, the trial Court i.e. the Chief Judicial Magistrate, Vadodara, is directed that the judgment in Criminal Case Page 10 of 11 R/CR.MA/12661/2015 ORDER No.282 of 2005 shall not be pronounced till the main petition is reheard and decided.
The main petition i.e. the Special Criminal Application No.599 of 2015 shall be notified day-after-tomorrow before the Bench taking up the quashing matters.
The interim order which was granted at the time of issue of the notice shall also come in operation till the final disposal of the Special Criminal Application No.599 of 2015.
A writ of these last parts of the order shall be communicated to the trial Court by the registry immediately preferably by today itself.
(J.B.PARDIWALA, J.) MOIN Page 11 of 11