Bombay High Court
M/S Primus Infraproject Private Ltd. ... vs M/S Capital First Ltd. Thr. Assistant ... on 12 July, 2017
Author: V. M. Deshpande
Bench: V. M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APL) NO.20/2017
1. M/s. Primus Infraproject Pvt. Ltd.
Having its office at Plot no. 2,
Gupta House, Museum Road, Civil Lines,
Nagpur, through applicant no.2.
2. Kamal Kumar Kothari,
Director, M/s. Primus Infraproject
Pvt. Ltd. r/o Plot No.2, Near Gupta House,
Museum Road, Civil Lines, Nagpur. .....APPLICANTS
...V E R S U S...
M/s. Capital First Ltd, through
its Assistant Manager, Having its
Branch office at Block No. 201,
Plot No.64B, Salwalk Manor Complex,
VIP Road, New Ramdaspeth, Nagpur. ...NON APPLICANT
AND
CRIMINAL APPLICATION (APL) NO.21/2017
1. M/s. Primus Infraproject Pvt. Ltd.
Having its office at Plot no. 2,
Gupta House, Museum Road, Civil Lines,
Nagpur, through applicant no.2.
2. Kamal Kumar Kothari,
Director, M/s. Primus Infraproject
Pvt. Ltd. r/o Plot No.2, Near Gupta House,
Museum Road, Civil Lines, Nagpur. .....APPLICANTS
...V E R S U S...
M/s. Capital First Ltd, through
its Assistant Manager, Having its
Branch office at Block No. 201,
Plot No.64B, Salwalk Manor Complex,
VIP Road, New Ramdaspeth, Nagpur. ...NON APPLICANT
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Mr. Sunil Manohar, Senior Advocate with Mr. A. H. Lohiya, Advocate
for applicants.
Mr. Anil Mardikar, Senior Advocate with Mr. S. G. Joshi, Advocate
for non applicant.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 12.07.2017
ORAL JUDGMENT
1. Rule. Rule is returnable forthwith. Heard finally by consent of the parties.
I have heard the detailed submissions of Mr. Sunil Manohar, learned Senior Counsel for the applicants and Mr. Anil Mardikar, learned Senior Counsel for the non applicant.
Though various submissions were advanced before this Court, after hearing the elaborate submissions of both the learned counsel, I am of the view that both these applications can be disposed of at this stage itself.
2. The non applicant preferred two different cases seeking the prosecution of the non applicant for an offence punishable under Section 138 of the Negotiable Instruments Act. One of such cases is registered as Summary Criminal Case No.16985/2015 that gives rise to Criminal Application No.20/2017 and the other case which is registered as Summary Criminal Case No.16984/2015 that gives rise to Criminal Application No. 21/2017. ::: Uploaded on - 13/07/2017 ::: Downloaded on - 15/07/2017 00:32:57 :::
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3. Undisputedly, on 12.01.2016, the learned Magistrate issued process against the applicants for an offence punishable under Section 138 of the Negotiable Instruments Act. Pursuant to the process issued against the applicants, they appeared before the Court of learned Magistrate. During the pendency of these two cases, an application was filed on behalf of the applicant no.2 styled as "Application under auxiliary powers of the court for quashing of the complaint." The said application was moved on 08.11.2016. In my view, the learned Magistrate has rightly rejected the said application on 25.11.2016. Thereafter on 05.01.2017, an application for personal exemption was moved by the applicant no.2 before the learned Magistrate. The learned Magistrate had on 05.01.2017, rejected the said application and also issued non bailable warrant against applicant no,2. After passing the order below Exh.-36, the present two proceedings under Section 482 are filed before this Court questioning the order of issuance of process and also issuance of non bailable warrant.
4. No doubt true that this Court can exercise its power under Section 482 of the Cr.P.C. for quashing of the order of issuance of process bypassing the remedy of filing a revision before ::: Uploaded on - 13/07/2017 ::: Downloaded on - 15/07/2017 00:32:57 ::: 4 apl20.21.17.odt the revisional Court. However, to persuade this Court for exercising the powers under Section 482 of Cr. P. C. to bypass the forum of revisional Court, an exceptional case is required to be made out.
5. After hearing both the learned Senior counsel and after having gone through the compilations of both these applications under Section 482 of Cr.P.C., I am afraid that the applicants have made out a case that this Court should exercise its powers under Section 482 of the Cr.P.C. without permitting the applicants to avail the powers of filing the revision before the revisional Court.
6. The applicants in these two proceedings are therefore directed that they should first approach before the learned revisional Court to challenge the order of issuance of process dated 12.01.2016 in respective criminal cases. It is obvious that as on today, the revision will be barred by limitation. Therefore they will require to file applications for condonation of delay under the Limitation Act. It is always open for the learned revisional Court to decide the said application for condonation of delay in accordance with the law. However, the revisional Court while ::: Uploaded on - 13/07/2017 ::: Downloaded on - 15/07/2017 00:32:57 ::: 5 apl20.21.17.odt condoning or refusing to condone the delay has to consider the period which was lost during the pendency of the proceeding before this Court in view of Section 14 of the Limitation Act.
7. Insofar as issuance of non bailable warrant is concerned, in my view, the Magistrate has shown undue haste in issuing the non bailable warrant especially when on many dates the applicant no.2 was present and for other dates he was present through his counsel. On a particular date, the application for personal exemption was filed. Though it is the discretion of the learned Magistrate either to grant or not to grant an application for personal exemption, at the same time, before issuing the non bailable warrant directly, it is always advisable to the learned Magistrate to issue a bailable warrant initially and if in spite of issuance of the bailable warrant the applicant or accused is not appearing before the learned Magistrate, it is always open for the learned Magistrate to issue non bailable warrant to procure his presence.
8. Admittedly, in the present case, before issuance of present non bailable warrant, bailable warrant was not issued. ::: Uploaded on - 13/07/2017 ::: Downloaded on - 15/07/2017 00:32:57 :::
6 apl20.21.17.odt Therefore, in my view, the issuance of non bailable warrant against the applicant no.2, cannot stand to the scrutiny of law.
In that view of the matter, following order is passed.
ORDER
(i) Criminal Application Nos.20/2017 and 21/2017 are partly allowed.
(ii) The order of issuance of non bailable warrant against applicant No.2 in Summary Criminal Case No.16985/2015 and Summary Criminal Case No.16984/2015 are quashed and set aside.
(iii) The applicants are at liberty to approach the revisional Court questioning the correctness of the order of issuance of process dated 12.01.2016 in Summary Criminal Case No.16985/2015 and Summary Criminal Case No.16984/2015.
(iv) If the revisions applications are accompanied with the applications for condonation of delay, those applications shall be decided by the revisional Court in accordance with law and also considering the provisions of Section 14 of the Limitation Act.
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(v) Ad interim order granted by this Court on 13.01.2017 in both the applications shall remain in operation for four weeks from today. After expiry of four weeks, the interim order passed by this Court on 13.01.2017 shall cease to operate.
Rule is made absolute in the above terms.
No order as to costs.
JUDGE kahale ::: Uploaded on - 13/07/2017 ::: Downloaded on - 15/07/2017 00:32:57 :::