Rajasthan High Court - Jodhpur
Subh Enterprises Through Its Prop. ... vs Raghav Paints And Building Material on 24 September, 2021
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 4936/2021
Subh Enterprises Through Its Prop. Ashish Doshi, S/o Late Shri
Paras Mal Doshi, Aged About 45 Years, B/c Jain, Address G-17,
Industrial Area, Boranada, 1St Phase, Jodhpur.
----Petitioner
Versus
Raghav Paints And Building Material, Through Its Prop. Smt.
Pooja Kalanktri W/o Shri Anil Maheshwari, Address - 254 -C ,
Milkman Colony, Near Passport Office, Pal Road, Jodhpur.
----Respondent
For Petitioner(s) : Mr. Mahipal Rajpurohit
For Respondent(s) : Mr. Himanshu Maheshwari
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 24/09/2021
1. In wake of second surge in the COVID-19 cases, abundant caution is being maintained, while hearing the matters in Court, for the safety of all concerned.
2. This criminal misc. petition under Section 482 Cr.P.C. has been preferred claiming the following reliefs:
"It is, therefore, most respectfully prayed that this petition may kindly be allowed with costs, in the interest of justice, besides setting aside the impugned order dated 01.02.2021 passed in Criminal Case No.1489/2016 as well as order dated 19.08.2021 passed in Criminal Revision No.227/2019."
3. Learned counsel for the petitioner submits that the respondent had intentionally filed a wrong petition under Section 138 of the Negotiable Instruments Act before the learned trial (Downloaded on 28/09/2021 at 08:41:22 PM) (2 of 4) [CRLMP-4936/2021] court, as there was no transaction happened between the petitioner and the respondent.
4. Learned counsel further submits that the petitioner has moved an application under Section 258 Cr.P.C., which has been wrongly rejected by the learned court below.
5. Learned counsel for the respondent however, submits that in the judgment rendered by the Hon'ble Supreme Court in Re:
Expeditious Trial of Cases under Section 138 of the N.I. Act, 1881, it has been laid down thus:
"24. The upshot of the above discussion leads us to the following conclusions:
1) The High Courts are requested to issue practice directions to the Magistrates to record reasons before converting trial of complaints under Section 138 of the Act from summary trial to summons trial.
2) Inquiry shall be conducted on receipt of complaints under Section 138 of the Act to arrive at sufficient grounds to proceed against the accused, when such accused resides beyond the territorial jurisdiction of the court.
3) For the conduct of inquiry under Section 202 of the Code, evidence of witnesses on behalf of the complainant shall be permitted to be taken on affidavit. In suitable cases, the Magistrate can restrict the inquiry to examination of documents without insisting for examination of witnesses.
4) We recommend that suitable amendments be made to the Act for provision of one trial against a person for multiple offences under Section 138 of the Act committed within a period of 12 months, notwithstanding the restriction in Section 219 of the Code.
5) The High Courts are requested to issue practice (Downloaded on 28/09/2021 at 08:41:22 PM) (3 of 4) [CRLMP-4936/2021] directions to the Trial Courts to treat service of summons in one complaint under Section 138 forming part of a transaction, as deemed service in respect of all the complaints filed before the same court relating to dishonour of cheques issued as part of the said transaction.
6) Judgments of this Court in Adalat Prasad (supra) and Subramanium Sethuraman (supra) have interpreted the law correctly and we reiterate that there is no inherent power of Trial Courts to review or recall the issue of summons. This does not affect the power of the Trial Court under Section 322 of the Code to revisit the order of issue of process in case it is brought to the court's notice that it lacks jurisdiction to try the complaint.
7) Section 258 of the Code is not applicable to complaints under Section 138 of the Act and findings to the contrary in Meters and Instruments (supra) do not lay down correct law. To conclusively deal with this aspect, amendment to the Act empowering the Trial Courts to reconsider/recall summons in respect of complaints under Section 138 shall be considered by the Committee constituted by an order of this Court dated 10.03.2021.
8) All other points, which have been raised by the Amici Curiae in their preliminary report and written submissions and not considered herein, shall be the subject matter of deliberation by the aforementioned Committee. Any other issue relating to expeditious disposal of complaints under Section 138 of the Act shall also be considered by the Committee."
6. Learned counsel for the respondent further submits that the trial is at its fag end and also the final order is at the verge of being passed.
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7. After hearing learned counsel for the parties as well as perusing the record of the case, at this stage, when the trial is at its fag end, and looking into the precedent law laid down by the Hon'ble Supreme Court in the aforementioned judgment, this Court is not inclined to interfere in the matter.
8. Consequently, the present petition is dismissed. However, the petitioner shall be at liberty to take up all the legal issues before the learned trial court, if the proceedings before it are still pending. All pending applications also stand dismissed.
(DR.PUSHPENDRA SINGH BHATI),J.
320-SKant/-
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