Madhya Pradesh High Court
Channi Randhava vs M/S Goel And Goel on 20 August, 2019
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
THE HIGH COURT OF MADHYA PRADESH : JABAPLUR
M.Cr.C. No. 32664/2019
(Channi Randhava vs. M/s Goel and Goel)
Jabalpur, Dated: 20.08.2019
Shri Sankalp Kochar, learned counsel for the petitioner.
Shri Ajay Gupta, learned counsel for the respondent.
This second petition under Section 482 Cr.P.C. has been preferred by the petitioner challenging the order dated 18.04.2019 passed by 3 rd Addl. Sessions Judge, Itarsi, Distt. Hoshangabad whereby the learned ASJ has directed the petitioner to deposit 20% of compensation amount i.e. rupees one crore within a period of 60 days while allowing an application under Section 389 Cr.P.C.
Earlier, petitioner has filed M.Cr.C. No. 21372/2019 for quashing the same impugned order, which was rejected by the court on merits on 17.07.2019.
Learned counsel for the petitioner submits that the complaint was lodged in year 2013, whereas the concerned provision of Section 143-A of N.I. Act was inserted in the year 2018 and it is enforceable w.e.f. 01.09.2018. In the recent pronouncement, in the case of G.J. Raja Vs. Tejram Surana, passed in Criminal Appeal No. Cr.A. No. 1160/2019, the Hon'ble the Apex Court came to conclusion and held that the provision of Section 143-A of N.I. Act will not have retrospective effect. Thus, it becomes clear that provision of Section 143-A of N.I. Act will only apply to those cases which have been filed after the date of the enactment of the amendment. Therefore, the order passed by the learned trial court deserves to be set-aside so far as it relates to the condition of depositing of the aforesaid amount. He further submits that this Court has passed the order while dealing the fact that the above said provision has retrospective effect whereas now the controversy has already been resolved by the Hon'ble Apex Court in the case of G.J. Raja (supra). He prays for recalling the order dated 17.07.2019 and also prays to quash the condition as imposed by the learned trial court. At this juncture, it is necessary to mention that there is no need to hear the merits of the case again, as same has already been discussed and considered in earlier order dated 17.07.2019. In support of his contention, he has supplied the copy of judgment passed in the case of G.J. Raja (supra).
On the other hand, learned counsel for the respondent opposes the prayer and submits that the petitioner has filed this petition just to delay the proceedings of the appellate court and he is misleading the court. It is apparent from the earlier order passed by this court that all the merits have already been considered by the court and order has been passed. In the present case, the petitioner has already been convicted by the trial court and in such circumstances, provision of Section 143-A would not be applicable whereas provision of Section 148-A would be applicable in the case. According to pronouncement of Hon'ble the Apex Court in the case of G.J. Raja (supra) the operation of Section 143-A is prospective and Section 148 is retrospective. The petitioner has convicted by the trial court after enactment of abovesaid provision. The order dated 17.07.2019 is based upon the provision of Section 148 N.I. Act not Section 143-A of the act. He further submits that in the earlier judgment, the court has relied the pronouncement of Hon'ble the Apex Court in the case of Surinder Singh Jaiswal and other Vs. Virender Gandhi, (2019) 8 SCALE 445 findings of which, have not been disturbed by the Hon'ble Apex Court while passing the judgment of G.J. Raja's case. Apart from that, under Cr.P.C. there is no provision to review/recall the order by filing subsequent petition. He submits that the case of petitioner is having no merits and also not maintainable in view of the provision of Section 362 Cr.P.C.
On rebuttal of argument with regard to maintainability raised by respondent's counsel, the learned counsel for the petitioner has relied upon the pronouncement of the Hon'ble Apex Court in the case of Anil Khadkiwala Vs. State (Government of NCT of Delhi) and another, (2019) SCC Online SC 941 and submits that the Hon'ble Apex Court has hold that the second application for quashing the complaint is maintainable and it cannot be unentertained merely because of the dismissal of the earlier application.
Heard and perused the case.
Undisputedly, vide order dated 17.07.2019 after considering the merits of the case, this court has rejected M.Cr.C. No. 21372/2019 filed by the petitioner with the same prayer. This subsequent review petition is filed by the petitioner in shape of petition under Section 482 Cr.P.C. Before considering the merits of the case, it would be necessary to consider the legal aspect as to whether after rejection of the petition in merits, on the basis of subsequent developments, in principle of law, review of rejection order is permissible or not? In this regard, in the recent pronouncement of Hon'ble the Apex Court in the case of Atul Shukla Vs. State of M.P. passe in Cr.A. No. 837/2019 dated 06.05.2019, the Hon'ble court has observed that in view of the specific bar, which is contended in Section 362, an application for review or modification could not have been entertained, accordingly, the Hon'ble Apex Court has allowed the appeal and set-aside the impugned judgment of High Court whereby the High Court has entertained the second petition under Section 482 for review, recall and modification of earlier order of rejection. In another judgment in the case of State of Punjab Vs. Davinder Pal Singh Bhullar, (2011) 14 SCC 770, the Hon'ble Apex Court held that there is no power of review with the criminal court once the judgment has been rendered. The relevant para nos. 44 & 45 are quoted as under:-
"44. There is no power of review with the criminal court after the 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 CrPC 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.
45. Moreover, the prohibition contained in Section 362 CrPC is absolute; after the judgment is signed, even the High Court in exercise of its inherent power under Section 482 CrPC has no authority or jurisdiction to alter/review the same."
In the present case, there is no arithmetical & clerical error for which the order passed earlier can be reviewed or recalled. Once, the merits of the case has been considered by the court and order has been passed, in such circumstances if the merits of the case would consider again then same against the spirit of Section 362 Cr.P.C. Therefore, in view of the pronouncement of Hon'ble Apex Court in the case of Davinder Singh Bhullar (supra) and Atul Shukla (supra) this subsequent petition is not maintainable.
Since, the learned counsel for the petitioner has enlightened the court with the principles laid down by the Hon'ble Apex Court in the recent pronouncement of G.J. Raja (supra), therefore, it become necessary for this court to consider the same. On careful reading of the same, it appears that the pronouncement passed by Hon'ble Apex Court with regard to provision of Section 143-A of N.I. Act and the Hon'ble Court held that Section 143-A can be applied or invoked only in cases where the offence under Section 138 of N.I. Act was committed after the introduction of Section 143-A of the act. The fact of that case was that the lower court has directed to the appellant to pay interim compensation to the respondent, same was challenged in High Court and the court has affirmed the order of lower court. In that case, the trial was pending. In the present case, the facts are quite different from the G.J. Raja's case, as in the present case petitioner has been convicted by the trial court and order of compensation was made while considering the application filed under section 389 Cr.P.C. In G.J. Raja's case in para 23, the Hon'ble Apex Court has reiterated the judgment of Surinder Singh Deswal (supra) and found that the decision of the court stands on different footing. Para 23 is quoted as under:-
"23.We must, however, advert to a decision of this Court in Surinder Singh Deswal and Ors. vs. Virender Gandhi where Section 148 of the Act which was also introduced by the same Amendment Act 20 of 2018 from 01.09.2018 was held by this Court to be retrospective in operation. As against Section 143A of the Act which applies at the trial stage that is even before the pronouncement of guilt or order of conviction, Section 148 of the Act applies at the appellate stage where the accused is already found guilty of the offence under Section 138 of the Act. It may be stated that there is no provision in Section 148 of the Act which is similar to Sub-Section (5) of Section 143A of the Act. However, as a matter of fact, no such provision akin to sub-section (5) of Section 143A was required as Sections 421 and 357 of the Code, which apply post- conviction, are adequate to take care of such requirements. In that sense said Section 148 depends upon the existing machinery and principles already in existence and does not create any fresh disability of the nature similar to that created by Section 143A of the Act. Therefore, the decision of this Court in Surinder Singh Deswal stands on a different footing."
On the case in hand, the petitioner has been convicted by the trial court for the offence punishable under section 138 N.I. Act. In appeal his bail application has also been considered by the Appellate Court by applying the provision of Section 148 of N.I. Act. The arguments raised by learned counsel for the petitioner do not deal with the facts of the present case.
Accordingly, this successive 482 petition is not maintainable and it has also no merits, thus, it is hereby dismissed. Petitioner has no option but only to comply the order passed by learned Lower Court.
(Rajendra Kumar Srivastava) JUDGE L.R. Digitally signed by LALIT SINGH RANA Date: 2019.08.27 18:18:14 +05'30'