Bombay High Court
Sukhadev S/O Namdev Devale vs Pralhad Haribhau Bhoyar on 26 February, 2020
Author: Pushpa V. Ganediwala
Bench: Pushpa V. Ganediwala
APPP 1254.16 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APPP) NO. 1254 OF 2016 IN
CRIMINAL APPLICATION (APPA) NO. 830 OF 2010
(DECIDED ON 10/02/2011).
Sukhadev s/o Namdeo Deole,
aged about 46 years, Occ. Service,
R/o Jai Bhawani Building, Kata Road,
Washim, Tq. and District Washim.
...APPLICANT.
Versus
Pralhad Haribhau Bhoyar,
aged about 49 years, Occ. Agriculturist,
R/o Village Nagartas,
Tq. Malegaon, District Washim.
...RESPONDENT.
Shri R.L. Khapre, Senior Advocate a/w Shri A.S. Shukla, Advocate
for the applicant.
Shri B.N. Mohta, Advocate for the respondent.
CORAM : PUSHPA V. GANEDIWALA, J.
DATE OF RESERVING THE JUDGMENT : 20/02/2020. DATE OF PRONOUNCING THE JUDGMENT : 26/02/2020. JUDGMENT.
Heard.
2. The present application is filed by the applicant/complainant under Section 482 of the Code of Criminal Procedure, 1973 (In short "the Code") for restoration of Criminal Application No. 830/2010 seeking leave to file ::: Uploaded on - 26/02/2020 ::: Downloaded on - 27/02/2020 15:49:49 ::: APPP 1254.16 2 appeal against acquittal under Section 378(4) of the Code of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (In short "N.I. Act").
3. It is submitted that the learned counsel for the applicant, with the permission of this Court, withdrew the aforesaid application with liberty to approach the appropriate forum with the bonafide belief that the appeal against acquittal would lie before the Court of Sessions as per the addition of proviso to Section 372 of the Code. Accordingly, the applicant preferred an appeal before the Court of Sessions which in its turn dismissed the appeal against acquittal, it being not maintainable before the Sessions Court.
4. The applicant again approached this Court under Section 482 of the Code for recalling of the order dated 10/02/2011 passed by this Court in Criminal Application No. 830/2010, permitting the applicant to withdraw his application for leave.
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5. Shri R.L. Khapre, learned Senior Advocate appearing on behalf of the applicant relied on the judgment of this Court given in the case of Tome Carvalho Vs. Communidade of Cortalim & Ors. [2016(3) Bom.C.R.(Cri.) 793] and submitted that this Court has ample power under Section 482 of the Code to recall its orders to secure the ends of justice.
6. Per contra, Shri B.N. Mohta, learned counsel appearing on behalf of the respondent relied on the judgments of the Hon'ble Supreme Court on the scope of inherent powers of this Court under Section 482 of the Code and submitted that as the appeal against acquittal preferred before the Sessions Court was resulted in dismissal, the applicant has a remedy under Section 378 of the Code to file appeal.
7. I have considered the submissions put forth on behalf of both the sides.
8. At the outset, the inherent powers of this Court to make such orders, as may be necessary, to give effect to any ::: Uploaded on - 26/02/2020 ::: Downloaded on - 27/02/2020 15:49:49 ::: APPP 1254.16 4 order under the Code, or to prevent abuse of process of any Court or otherwise to secure the ends of justice, have been saved under Section 482 of the Code. For that purpose, nothing in the Code shall be deemed to limit or affect the inherent powers of this Court. At the same time, it is well settled through a catena of judgments of the Hon'ble Supreme Court that the inherent powers of this Court shall be used sparingly and with circumspection.
9. No doubt, Section 362 of the Code prohibits the Court from altering or reviewing the judgment once it is signed, except to correct a clerical or arithmetical error. For ready reference, Section 362 of the Code is reproduced hereinunder :-
"362. Court not to alter judgment. - Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error."
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10. A bare perusal of the text of the aforesaid Section would reveal that it has no overriding effect to Section 482 of the Code. Secondly, the prohibition is with regard to the judgment or final order disposing of a case. In the instant case, apparently, there was no final order which is sought to be recalled. The applicant was allowed to withdraw the application for leave to file appeal only due to his bonafide belief as well as of the Court that the appeal against acquittal is not maintainable before this Court. Furthermore, the provision is to be construed with regard to the context in which it is enacted.
11. A perusal of the provisions from Sections 353 to 365 of Chapter XXVII of the Code relating to 'Judgments' and perusal of Chapter XXIX of the Code relating to 'Appeals', would show that the judgments are pronounced after termination of the trial or after hearing of the appeal by the Appellate Court. So far as 'final order of a case' is concerned, though it is not defined in the Code, yet the same can be construed as orders passed under various provisions of the Code like order for discharge, order of dismissal of complaint, order below revision application and ::: Uploaded on - 26/02/2020 ::: Downloaded on - 27/02/2020 15:49:49 ::: APPP 1254.16 6 orders of like nature which requires some sort of application of mind on the part of the Court.
12. In my considered opinion, the order permitting withdrawal of the appeal with liberty to approach the appropriate forum would not be a final order in the sense as contemplated under Section 362 of the Code. Until amendment to Section 372 of the Code, there was no confusion with regard to filing of appeal against acquittal of the offence punishable under Section 138 of the N.I. Act. Now the law has been set right by the judgment of this Court and many other High Courts that 'victim' as referred under proviso to Section 372 of the Code would not cover 'complainant' in the complaint under Section 138 of the N.I. Act.
13. The applicant had already filed appeal against acquittal before this Court and withdrew it with bonafide belief of non maintainability. The learned Sessions Court dismissed his appeal on the ground of maintainability and therefore, the existence of such order is non-est. There is no point to file any ::: Uploaded on - 26/02/2020 ::: Downloaded on - 27/02/2020 15:49:49 ::: APPP 1254.16 7 appeal against this order. Nobody disputes the position of law on this point.
14. The Hon'ble Apex Court in the case of Sanjeev Kapoor Vs. Chandana Kapoor & Ors. [Criminal Appeal No.286/2020 decided on 19/02/2020] has held that a Magistrate, who passes an order on settlement between the parties under Section 125 of the Code, has the power to recall or set aside the order, if the terms of same are violated and Section 362 of the Code does not function as a bar on the same. The Hon'ble Apex Court held that the rigour as contained under Section 362 of the Code is relaxed in the following two conditions :-
i. Save as otherwise provided by the Code of Criminal Procedure.
ii. Any other law for the time being in force. Therefore, the Hon'ble Apex Court held that, "the legislature was aware that there are and may be the situations where altering or reviewing of criminal court judgment is contemplated in the Code itself or any other law for the time being in force". The Hon'ble Apex Court considered the scheme ::: Uploaded on - 26/02/2020 ::: Downloaded on - 27/02/2020 15:49:49 ::: APPP 1254.16 8 of Section 125 of the Code and considered the object in bringing this provision in the Code. Being a social justice legislation, an approach towards 'social justice adjudication/social context judging' must be adopted as against mere 'adversarial approach'. The Hon'ble Apex Court held that Section 125 of the Code must be interpreted in a manner to advance the cause of justice for women.
15. Similarly, the object of bringing Section 138 of the N.I. Act in the statute book is to inculcate faith in the banking transactions. For the trial of the offence under this Section, provisions of the Code are made applicable. Though, Section 138 of the N.I. Act is a penal provision, the object is to recover the amount as inserted in the cheque than to punish the accused.
16. Therefore, considering the nature of the offence and its purpose coupled with the present fact situation, I do not find any error of jurisdiction under Section 482 of the Code in allowing the prayer of the applicant to recall the order dated ::: Uploaded on - 26/02/2020 ::: Downloaded on - 27/02/2020 15:49:49 ::: APPP 1254.16 9 10/02/2011 passed by this Court in Criminal Application No. 830/2010 and to permit him to contest the application for leave to file appeal.
17. Accordingly, the application is allowed. The order dated 10/02/2011 passed by this Court in Criminal Application No. 830/2010 is recalled. The Criminal Application No. 830/2010 is restored to the file for decision in accordance with law.
JUDGE Sumit.
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