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2001 DIGILAW 647 (RAJ)

Mahesh Arora v. Nidhipati Singhania

2001-04-18

ARUN MADAN

body2001
Honble MADAN, J.–This order will dispose of both the misc. petitions No. 702/97 filed by complainant, Mahesh Arora and No. 614/96 filed by Nidhipati Singhania (accused). (2). Misc. Petition No. 614/1996 was firstly filed by Nidhipati Singhania (accused) u/S. 482 Cr.P.C. seeking relief for quashing the order dated 8.5.1996 passed by the Additional Civil Judge (JD) & Judicial Magistrate No. 5, Kota (North) in criminal complaint No. 163/96, whereby the learned trial Magistrate took cognizance against him (accused) of a criminal case launched by complainant Mahesh Arora u/S. 138 of the Negotiable Instruments Act, 1981 on the allegations inter alia that a cheque No. 450079 dated 20.3.96 for a sum of Rs. 3766/- drawn on State Bank of India for the payment of supply of lunch packets by complainant Mahesh Arora to Acrylic Division of J.K. Synthetics Ltd. (ATC Group) Kota, had been returned back dishonoured. Admittedly the said cheque was issued and signed by the authorised signatories for JK Synthetics Ltd. Acrylic Division Kota whose Special Executive is Nidhipati Singhania. The cheque was presented by complainant Mahesh Arora on 25.3.96 for Ganesh Mishthan Bhandar for its collection and payment through Punjab National Bank Airdrome Circle, Kota but the same (Annx.1) was returned by the State Bank of India by dishonoring it. (3). Be that as it may, since the payment of the cheque could not have been received by complainant Mahesh Arora, hence he sent a legal notice (Ann.4) through his advocate on 3.4.1996 demanding payment of cheque amount with a threat to take appropriate action u/S. 138 of the Act. Ultimately complainant filed criminal complaint against accused Nidhipati Singhania before the trial Magistrate for offences punishable u/S. 406 and 420 IPC read with Sec. 138 of the Act. On 06.5.1996 statement of complainant Mahesh Arora was recorded u/S. 200 Cr.P.C. and on 08.05.1996 cognizance was taken by the trial Magistrate against accused Nidhipati Singhania for offence punishable u/S. 138 of the Act who issued summons for his appearance. Hence criminal misc. petition No. 614/96 was filed by Nidhipati for quashing the impugned order dated 8.5.96 (Annn.6) whereby cognizance was taken and summon was issued against him. According to Nidhipati Singhania, summons have not been served upon him. Hence criminal misc. petition No. 614/96 was filed by Nidhipati for quashing the impugned order dated 8.5.96 (Annn.6) whereby cognizance was taken and summon was issued against him. According to Nidhipati Singhania, summons have not been served upon him. It was his case that within 15 days of receipt of the notice dated 3.4.96 (Ann.3), reply (Ann.7) was sent on 20.4.1996 but the complainant filed his complaint on 20.4.96 without waiting for expiry of 15 days of notice (Ann.3). (4). On 9.8.96 this Court issued show cause notice of petition in S.B. Cr.Misc. Petition No. 614/96 to the complainant and ad interim order staying the operation of impugned order dated 8.5.96 (Anne.6) was passed. After service of the notices upon the complainant, the case came up on 23.9.97 when the learned counsel for both the parties stated that there was every likelihood of amicable settlement of the matter and Mr. Mahendra Singh appearing for Nidhipati Singhania Stated that amount of dishonoured cheque would be tendered to the learned counsel for the complainant on the next date 30.9.97, itself. On 30.9.97 an amount of Rs. 3767/- which was due to the complainant on account of dishonoured cheque had been tendered in court by Mr. Mahendra Singh and was accepted by Mr. Arvind Bhardwaj learned counsel for complainant Mahesh Arora, and as a result thereof, this Court ordered as under:- ``As a result of this, no cause of action survives, consequently, the petition is disposed as having become infructuous. As a result of this, the criminal proceedings initiated against the accused petitioner pursuant to the impugned order of the trial court shall also stand abated. (5). Against the aforequoted order dated 30.9.97, complainant filed criminal misc. petition No. 702/1997 praying therein for recalling that order. An affidavit of complainant Mahesh Arora was also filed as Ann.1 to his petition claiming that he had given clear instruction to his counsel not to compromise into the matter and not to accept the amount in question in his behalf. On 11.12.1998 Shri S.P. Tyagi alongwith his client Mr. Mahesh Arora (complainant) appeared before this Court, and since Mr. Arvind Bhardwaj learned counsel for the complainant was not present, this Court directed that Mr. Bhardwaj would remain present on the next date 18.12.98 and Mr. S.P. Tyagi had conveyed his assurance that he would exercise his offices in persuading Mr. On 11.12.1998 Shri S.P. Tyagi alongwith his client Mr. Mahesh Arora (complainant) appeared before this Court, and since Mr. Arvind Bhardwaj learned counsel for the complainant was not present, this Court directed that Mr. Bhardwaj would remain present on the next date 18.12.98 and Mr. S.P. Tyagi had conveyed his assurance that he would exercise his offices in persuading Mr. Arvind Bhardwaj for arriving at amicable settlement with Mr. Mahesh Arora. Then the case came up on 18.12.1998 and this Court passed following order:- ``18.12.1998 Mr. S.P. Tyagi for the applicant Mr. Arvind Bhardwaj for the complainant petitioner Mr. Arvind Bhardwaj, learned counsel for the complainant has been heard with regard to order dated 30.9.1997 passed by this Bench as a result of settlement arrived at between the parties with regard to a sum of Rs. 3766/- which was due to the respondent on account of dishonoured cheque which was received by Mr. Arvind Bhardwaj in Court when it was tendered by Mr. Mahendra Singh, learned counsel representing the accused. This statement of fact has been disputed by Mr. Mahesh Arora the petitioner. Hence, I deem it appropriate to direct the matter shall be heard and decided on merits. As a result, the order dated 30.9.1997 is recalled and the proceedings initiated earlier against the accused petitioner as a result of dishonoured cheque of the above amount pursuant to the impugned order of the trial court shall stand restored. With the above directions, the application stands allowed and disposed of. Notice be issued to the non-petitioner, returnable within six weeks. (6). After the afore quoted order, the Registry has continued to draw proceedings in the file of petition No. 702/97 so also in earlier petition No. 614/96. In petition No. 702/97 this Court passed following order on 14.5.99:- ``14.5.99 Mr. S.P. Tyagi for the petitioner The learned counsel for the petitioner states that since respondent Nidhipati Singhania is already represented by Shri Paras Kuhad. Service on respondent is deemed to be sufficient and complete. In view of the order dated 6.4.1996 S.B. Criminal Misc. Petition No. 614/96 which has already been restored to its original number be notified in the cause list. This matter be listed alongwith the said connected petition. (7). On 30.5.2000 this Court directed that in view of the order dated 14.5.99 the application be listed with S.B. Cr. Misc. Petition No. 614/96 showing names of Mr. Petition No. 614/96 which has already been restored to its original number be notified in the cause list. This matter be listed alongwith the said connected petition. (7). On 30.5.2000 this Court directed that in view of the order dated 14.5.99 the application be listed with S.B. Cr. Misc. Petition No. 614/96 showing names of Mr. Paras Kuhad and Mr. Arvind Bhardwaj in the cause list. On 28.7.2000 Mr. Sunil Nath appearing for Mr. Paras Kuhad and the respondent pleaded no instructions in the matter as the file had already been handed over to his client Nidhipati Singhania. In these circumstances, court notice without process was ordered to be issued to the parties so also Shri Arvind Bhardwaj and respondent. On 28.7.2000 this Court passed following order:- ``28.7.2000 Mr. S.M. Jain for complainant applicant Mahesh Arora Mr. Sunil Nath for Mr. Paras Kuhad for respondent Mr. S.M. Jain learned counsel for the petitioner has stated that a sum of Rs. 3766/- which was due to the complainant on account of dishonoured cheque was tendered in court by Shri Mahendra Singh, learned counsel representing the accused on 30.9.1997 as a result of settlement arrived at between the parties. Today, I have been informed by the learned counsel for the petitioner that though the cheque was handed over to Shri Arvind Bhardwaj, Advocate but, the same has yet not been received by the complainant. Mr. Sunil Nath, learned counsel for the respondent has pleaded no instructions in the matter as the file has already been handed over to his client. Under the circumstances, let court notice without process be issued to the parties. Court notice without process be also issued to Shri Arvind Bhardwaj Advocate for his presence before this Court on the next date. Mr. Mahesh Arora complainant petitioner and Nidhipati Singhania respondent are directed to remain present in court so as to ensure as to whether the cheque which was tendered to Arvind Bhardwaj Advocate was returned back to the party or not. Put up on 18.8.2000. (8). Accordingly notice was served upon Mr. Mr. Mahesh Arora complainant petitioner and Nidhipati Singhania respondent are directed to remain present in court so as to ensure as to whether the cheque which was tendered to Arvind Bhardwaj Advocate was returned back to the party or not. Put up on 18.8.2000. (8). Accordingly notice was served upon Mr. Arvind Bhardwaj Advocate but court notice for service on Nidhipati Singhania was returned by the SHO Udhyog Nagar (Kota) with his report dated 18.8.2000 that Prem Singh Constable No. 176 was sent on 16.8.2000 for service at A 15/9 Basant Vihar New Delhi where he was accompanied with Ghasiram Head Constable No. 470 and both of them reached Nidhipatis house where security guard and one Mithilesh Kumar were found who informed about Nidhipati having gone out and when notice was given to them then they refused to receive the same so, the court notice was affixed at his house in the presence of witnesses who refused to put their signatures. (9). In the aforesaid circumstances the matter has come up for orders and admission before this court today. (10). Let me first take up criminal misc. petition No. 702/97. I have carefully read over and perused each of order sheets drawn in this file. A careful perusal thereof shows that on various occasions the case came up for orders at admission stage, but surprisingly enough neither complainant Mahesh Arora nor his learned counsel whenever appeared had brought to the notice of this Court that from the date of filing this petition, no notice has ever been issued either before admission or after admission of this petition. Whereas without notice to Nidhipati Singhania (original petitioner in petition No. 614/96) this petition No. 702/97 was allowed and disposed of by this Court under its order dated 18.12.1998 (quoted above) and then notice was issued to Nidhipati Singhania, inasmuch as despite such an order dated 18.12.1998 the Registry continued to draw note sheets in this petition No. 702/97 but also in earlier petition No. 614/96 and the Registry had also not drawn attention of this Court for rectification of correcting typographical/clerical error. Thus in aforesaid circumstances, both the petitions continued to be listed in the court from time to time and on the basis of order dated 18.12.98 earlier petition No. 614/96 was restored to its original number by virtue of recalling order dated 30.9.97 (quoted above) passed by this Court in earlier petition No. 614/96, which was connected by the Registry alongwith petition No. 702/97, in compliance of order passed in petition No. 702/97 on 14.5.99. (11). Be that as it may, despite the fact that by virtue of amount of dishonoured cheque of Rs. 3767/- having been accepted by Mr. Arvind Bhardwaj on behalf of complainant Mahesh Arora on 30.9.97 in the Court when petition No. 614/96 came up for consideration, and the matter stood abated in the light of order dated 30.9.97, the matter has been complexed by the complainant who appears to have disputed and denied to have received the said amount itself from his counsel Mr. Arvind Bhardwaj. Rather allegations have been made against Mr.Arvind Bhardwaj by specifically stating in affidavit by complainant Mahesh Arora that he never instructed Shri Arvind Bhardwaj Advocate to enter into compromise with Nidhipati nor to accept the amount alleged to have been accepted by him in the Court, and further that Shri Arvind Bhardwaj has not handed over the cheque/draft or cash to him, and on the basis of these allegations which have not yet been controverted by Shri Arvind Bhardwaj in counter by filing his affidavit or reply thereto, the complainant has sought recalling of order dated 30.9.97 passed in earlier petition No. 614/96. (12). Now the question arises as to whether on the basis of such assertions made by the complainant (who was respondent in earlier petition No. 614/96) earlier order dated 30.9.97 (quoted above) disposing of petition No. 614/96 as having become infructuous in view of the fact that amount of dishonoured cheque of Rs. 3767/- was accepted by Shri Arvind Bhardwaj in Court on behalf of complainant, could have been recalled u/S. 482 Cr.P.C. especially without notice to the opposite side, and whether order dated 18.12.98 in subsequent petition No. 702/97 was rightly passed without hearing the opposite side for recalling order dated 30.9.97. (13). 3767/- was accepted by Shri Arvind Bhardwaj in Court on behalf of complainant, could have been recalled u/S. 482 Cr.P.C. especially without notice to the opposite side, and whether order dated 18.12.98 in subsequent petition No. 702/97 was rightly passed without hearing the opposite side for recalling order dated 30.9.97. (13). As is evident from a careful perusal of the orders passed prior to order dated 18.12.98, no notice either before or after admission of petition No. 702/98 was issued to opposite side Nidhipati Singhania nor on his behalf, his counsel nor he appeared and thus Nidhipati since could not have been heard before recalling order dated 30.9.1997 of petition No. 614/96 under Order dated 18.12.98 in petition No. 702/97, this Court has no option but to correct its order dated 18.12.98 in petition No. 702/97 as it has resulted in miscarriage of justice. (14). As regards review of recalling of courts earlier order disposing of a case, in my considered view there is no provision in the Code of Criminal Procedure authorising this Court to review its judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction because such a power cannot be exercised with the aid or under the clock of Sec. 482 of the Code. My view is fortified from the decision in Hari Singh Mann vs. Harbhajan Singh (1), wherein the Apex Court held that Sec. 362 of the Cr.P.C. mandates that 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 and 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 disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside. The Apex Court emphasised that the practice of filing miscellaneous petitions after the disposal of the main case and issuance of fresh directions is such miscellaneous petitions by the High Court are unwarranted not referable to any statutory provisions and in substance the abuse of the process of the Court. (15). The Apex Court emphasised that the practice of filing miscellaneous petitions after the disposal of the main case and issuance of fresh directions is such miscellaneous petitions by the High Court are unwarranted not referable to any statutory provisions and in substance the abuse of the process of the Court. (15). In the instant case, admittedly by order dated 30.9.97 (review & recalling thereof has been sought in subsequent petition No. 702/97) petition No. 614/96 filed by Nidhipati (Accused was finally disposed of as having become infructuous as a result of having accepted amount of dishonoured cheque of Rs. 3767/- by Shri Arvind Bhardwaj who was admitteldy counsel for complainant Mahesh Arora, in the Court, and as a consequence thereof, criminal proceedings initiated against the accused pursuant to the impugned order dated 8.5.96 in Cr. Complaint No. 163/96 of the trial Magistrate stood abated. Such a final order disposing of a case (petition No. 614/96) & Cri. Complaint No. 163/96 cannot be altered or reviewed as done by this Court by its order dated 18.12.98 in subsequent petition No. 702/97 (quoted above) that too without notice to and hearing the opposite side. (16). In this view of the matter, while correcting the clerical error having crept in order dated 18.12.98 in petition No. 702/97, earlier order dated 30.9.97 in petition No. 614/96 is restored and petition No. 614/96 shall stand disposed of in the light of order dated 30.9.97, whereas order dated 18.12.98 passed in subsequent petition No. 702/97 filed by complainant Mahesh Arora shall stand recalled and quashed; and accordingly notice issued on 18.12.98 in petition No. 702/97 to Nidhipati Singhania shall stand discharged. Consequently criminal misc. petition No. 702/97 filed by complainant Mahesh Arora deserves to be dismissed and no interference is called for recalling order dated 30.9.97 in petition No. 614/96. (17). As regards the question raised and allegations levelled against Shri Arvind Bhardwaj as to whether complainant Mahesh Arora has been given amount of dishonoured cheque of Rs. Consequently criminal misc. petition No. 702/97 filed by complainant Mahesh Arora deserves to be dismissed and no interference is called for recalling order dated 30.9.97 in petition No. 614/96. (17). As regards the question raised and allegations levelled against Shri Arvind Bhardwaj as to whether complainant Mahesh Arora has been given amount of dishonoured cheque of Rs. 3767/- which was accepted on his behalf by his counsel Shri Arvind Bhardwaj on 30.9.97, or not, in my considered view, such a question cannot be decided by this Court in exercise of its power u/S.482, Cr.P.C. by recalling its earlier final order disposing of petition No. 614/96 and this Court leaves this matter for being adjudicated if raised by aggrieved party in appropriate forum under any law if so advised against Shri Arvind Bhardwaj either for recovery of said amount or for allegations levelled by Mahesh Arora. (18). With the above observations, both these petitions stand disposed of. A copy of this order be sent to the trial Court.