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2007 DIGILAW 876 (CAL)

Growth Compusoft Exports Ltd v. R K Singh

2007-12-17

S.P.TALUKDAR

body2007
JUDGMENT:- (1). BOTH these applications under section 401 read with section 482 of the Code of Criminal Procedure relate to identical points of law and as such the same were heard together on consent of learned Counsel for the parties. (2). THE case being C. R. R. No. 1719 of 2006 is directed against order dated 8. 3. 2006 passed by learned 5th Fast Track Court, Kolkata in Criminal Revision no. 157 of 2005. The learned Court of Revision, by the said order, confirmed the order dated 2th September, 2005 passed by the learned 11th Metropolitan magistrate, Kolkala, in Case No. C/7540 of 2003. (3). THE backdrop of the said case may briefly be stated as follows: opposite party No. 1, representing M/s. Supertron. Electronics Ltd., filed an application under sections 138/141 of the Negotiable Instruments Act before the learned Court of Chief Metropolitan Magistrate, Kolkata. The learned Court, after taking cognizance, made over the said case to the learned Court of metropolitan Magistrate for disposal. (4). THE learned Transferee Court, thereafter, passed order directing issuance of process against the accused persons. In response to that, the accused persons appeared in Court. An application was filed challenging maintainability of the said proceeding. Prayer was made for dropping of the proceeding. The learned trial Court rejected such prayer holding that in view of the decision of the Apex court in Adalat Prasad case, the learned Court had no authority to drop any proceeding triable by the summons procedure. (5). THE revisional application was filed against such order but with no success. (6). THE petitioner, thereafter, approached this Court with such prayer for dropping of the proceeding on the ground that continuation of such proceeding would tantamount to gross abuse of the process of law. (7). MR. Bhattacharjee, as learned Counsel for the petitioner, submitted that there had been failure to appreciate the legal position in its proper perspective by both the learned Courts. Referring to section 63 of the Code of Criminal procedure, it was claimed that there had been non-compliance of the said mandatory provision and as such, the process issued upon the present petitioner/ accused No. 1 is non est in the eye of law. (8). Referring to section 63 of the Code of Criminal procedure, it was claimed that there had been non-compliance of the said mandatory provision and as such, the process issued upon the present petitioner/ accused No. 1 is non est in the eye of law. (8). IT was then submitted that the order of issuance of process does not indicate that there had been application of mind as to who were the persons responsible for the day to day functioning of the company and this ought to have been done while appreciating the allegations constituting offences under sections 138/141 of the Negotiable Instruments Act. (9). MR. Bhattacharjee, thereafter, submitted that the learned Trial Court was essentially guided by the principles as laid down in the case of Adalat prasad vs. Rooplal Jindal and Ors. , as reported in 2004 C Cr. LR (SC) 1001, though having regard to the date and time of the commission of the alleged offence as well as the time of approaching the learned Court with the prayer for dropping of the proceeding, the matter ought to have been considered in the context of the decision in the case of K. M. Mathew vs. State of Kerala and Anr., as reported in 1992 Cr. LJ (SC) 3779. (10). MR. Bhattacharjee emphatically asserted that every Court, Civil or criminal, has the implied inherent power to undo a wrong. Referring to section 482 of the Code of Criminal Procedure, it was submitted that the said provision does not vest the High Court with any new power but it only recognizes the power which is already vested in the High Court. It only recognizes such inherent power which may be exercised for ends of justice as well as to prevent abuse of the process of Court. (11). SIGNIFICANTLY enough, it was further contended on behalf of the petitioner that this Court is called upon to take into consideration the fact as to how far a court of Law can afford to be indifferent to its own wrong and whether an accused has to be compulsorily made to suffer for a manifest error committed by a Court of Magistrate and take the trouble of approaching this Court for necessary redress. (12). IN response to this, Mr. Banerjee, appearing as learned Counsel for the opposite party, while appreciating the grievance, as ventilated by Mr. (12). IN response to this, Mr. Banerjee, appearing as learned Counsel for the opposite party, while appreciating the grievance, as ventilated by Mr. Bhattacharjee, submitted that the decision in the case of Adalat Prasad (supra), perhaps, leaves no scope for any further debate in this regard. (13). AT the time of hearing, many incidental issues were also raised and discussed. Chapter XX of the Code of Criminal Procedure, 1973 deals with "trial of summons cases by Magistrates". The said chapter covers as many as nine sections but none of those empowers or authorizes a Court of Magistrate to pass an order of dropping the proceeding on the ground that no offence in law could be said to have been committed by an accused person. (14). IN the case of K. M. Mathew (supra), the Apex Court, while appreciating that there is no specific provision for the Magistrate to drop the proceedings or rescind the process, observed that no such provision is required. It was observed that the "order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued, is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused. "There may be occasions when at the time of examination under section 251 of the Code, the learned Court does not find even prima facie material constituting an offence. The particulars of the offence, which are required to be stated to the accused, do not have any effective existence. What option is then open to the learned Court? Is it a kind of "not to reason why, but to do and die" situation? Will it not be a wild goose chase and, that too, at the cost of public exchequer? (15). IN such context, I find it difficult, if not impossible, to brush aside the submission made by Mr. Bhattacharjee that the power to drop a proceeding in appropriate situation is impliedly inherent in every Court. In fact, without such power, it becomes very difficult and sometime embarrassing as well, for a court to function. I fail to share view of Mr, Banerjee, appearing as learned counsel for the opposite party, that the solution, perhaps, is to be made by the legislature. In fact, without such power, it becomes very difficult and sometime embarrassing as well, for a court to function. I fail to share view of Mr, Banerjee, appearing as learned counsel for the opposite party, that the solution, perhaps, is to be made by the legislature. In order to advance the cause of justice, a Court of Law need not act as a timorous soul but should function as a bold spirit. If a problem is created by legal interpretation, there may not be sufficient reason for a Court to wait for the legislature to respond and to take care of the same. (16). IN course of hearing, reference was made to Article 141 of the constitution. The same reads as follows:-"141. The law declared by the Supreme Court shall be binding on all Courts within the territory of India. " (17). IN the case of Delhi Transport Corporation vs. D. T. C. Mazdoor, the supreme Court held that "the Court must do away with the childish fictions that law is not made by the judiciary. "[ref: 1991 Supp. (1) SCC 6001. (18). THIS is with the expectation that the Courts while interpreting law should rise above the doctrine of literal interpretation. Doctrines of purposive and progressive interpretation have come to prevail in the matter of statutory as well as constitutional interpretation. This is, however, subject to the restriction that the Court cannot rewrite the provisions, in the guise of interpretation. (19). IN Quinn vs. Leathern, 1901 AC 495, Lord Halsbury said "that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. " (20). THE fact that the case of K. M. Mathew was taken into consideration by the Apex Court, while dealing with the case of Adalat Prasad, leaves very little scope for further controversy. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. " (20). THE fact that the case of K. M. Mathew was taken into consideration by the Apex Court, while dealing with the case of Adalat Prasad, leaves very little scope for further controversy. It is a three Judges Bench decision which after taking into consideration various aspects held that "the observation of this court in the case of Mathew that for recalling an order of issuance of process erroneously, no specific provision of law is required would run counter to the scheme of the Code which has not provided for review and prohibits interference at interlocutory stages." (21). MR. Bhattacharjee on behalf of the petitioner then submitted that the learned Courts below were clearly wrong in holding that the case under reference is to be guided by the principles laid down in the Adalat Prasad case. It was submitted that the petitioner/accused person has the right to govern himself and to regulate his acts according to the law as enunciated by the superior courts until the same is altered in due course, judicial or legislative. He placed reliance on the decision in the case of Anup Kumar and Anr. vs. State of West bengal, as reported in 1992 C Cr. LR (Cal) 1, wherein His Lordship, bhattacharjee, J. on behalf of the Bench held that "it cannot be in any way reasonable right, just or fair to lay down a law in a particular manner and then to convict a person for some act which at the material time and until ruled differently, could not warrant a criminal prosecution." The principle laid down in the said decision does not seem to lend much support to the petitioner in the present case. Here it is not a question of binding the present petitioner with some law, which came into effect subsequently. (22). REFERENCE was made to the case of Mangilal vs. State of M. P., as reported in 2004 SCC (Cri) 1085. The legal principle formulated therein does not seem to be of much assistance to the present petitioner. The Apex Court, while dealing with the principles of natural justice, observed that statutory silence is taken to imply compliance with the principles of natural justice where substantial rights of parties are considerably affected. The legal principle formulated therein does not seem to be of much assistance to the present petitioner. The Apex Court, while dealing with the principles of natural justice, observed that statutory silence is taken to imply compliance with the principles of natural justice where substantial rights of parties are considerably affected. The Apex Court held that "an application of natural justice becomes presumptive, unless found excluded by express words of statute or necessary intendment." It was thereafter submitted by Mr. Bhattacharjee that the power of the Revisional Court is not merely confined to look into the alleged impropriety, illegality or irregularity in a proceeding but it can very well be exercised in order to correct injustice. (23). REFERENCE was made to the decision in the case of State of A. P. vs. Monica bedi and Ors. , as reported in 2006 (2) AID (Cri) 526 (AP). The learned Single bench of the said case held that "as a broad proposition, revisional interference may be justified where (a) the decision is grossly erroneous, (b) there is no compliance with the provisions of law, (c) the finding of fact affecting the decision is not based on any material collected by investigation and the judicial discretion is exercised arbitrarily or perversely. Revisional powers of the High Court are to be exercised only to correct the injustice not merely to rectify the illegalities which do not go into the root of the matter. " (24). IN the case of CBI vs. Ravi Shankar Srivastava, IAS and Anr. , as reported in 2006 (7) SCC 188 , it was held that power under section 482 of Cr. PC for the purpose of quashing a proceeding can very well be exercised where complaint does not disclose any offence or is frivolous, vexatious or oppressive. The Apex court, however, observed that the power should not be exercised to stifle a legitimate prosecution and it is to be done with circumspection and to do real and substantial justice and to prevent abuse of the process of Court. (25). DERIVING inspiration from the decision in the case of P. Sengupta and Anr. vs. Registrar of Companies and State, as reported in 1991 C Cr. (25). DERIVING inspiration from the decision in the case of P. Sengupta and Anr. vs. Registrar of Companies and State, as reported in 1991 C Cr. LR (Cal) 178, it was contended on behalf of the petitioner that all Criminal Courts have inherent powers to make such orders as may be necessary for the ends of justice, even though section 561a of the preceding Code of Criminal Procedure expressly save only the inherent powers of the High Court. The Privy Council in Boger vs. Comptoir, 1871 lr3 PC 465, held that all the Courts must and do possess such inherent powers "from the lowest Court which entertains jurisdiction over the matters upto the highest Court which finally disposes of the case. " (26). ATTENTION of the Court was invited to the decision in the case of State of karnataka vs. M. Devendrappa and Anr., as reported in 2002 SCC (Cri) 539. Some relevant portions of the said judgment may be reproduced as follows: "exercise of power under section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart- from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. " (27). THEIR Lordships further observed that "the powers possessed by the high Court under section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution". (28). MR. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution". (28). MR. Banerjee, as learned Counsel for the opposite party, in response to the challenge thrown on behalf of the petitioner, submitted that normally the decision of the Supreme Court enunciating a principle of law is applicable to all cases irrespective of stage of pendency thereof because it is assumed that what is enunciated by the Supreme Court, is, infact, the law from inception. The apex Court in the case of M. A. Murthy vs. State of Karnataka and Ors., as reported in 2003 (7) SCC 517, observed that the doctrine of prospective overruling which is a feature of American jurisprudence is an exception to the normal principle of law. (29). REFERRING to the decision in the case of M. Gurunathan vs. R. Amutha, as reported in 2006 (1) SCC (Cri) 786, it was submitted by Mr. Banerjee that it would be improper to quash a proceeding on a ground not raised in petition. (30). MR. Banerjee contended that Magistrate has no power of review or inherent power to recall the process. If the Magistrate issues process without any evidence, the remedy of the accused lies in moving the higher Court. [ref: adalat Prasad vs. Rooplal Jindal and Ors. , as reported in 2004 C Cr. LR (SC)1001]. (31). THE grievance of the petitioner, as ventilated by learned Counsel Mr. Bhattacharjee that the learned Trial Court was not justified in being guided by the principles as laid down in the case of Adalat Prasad (supra), does not seem to have any rational basis in view of the discussion made earlier. The order of dismissal of the revisional application by the learned Court of Revision and the order impugned before the said learned Court of Revision, thus, do not seem to suffer from any such illegality or impropriety so as to justify any interference by this Court. (32). The order of dismissal of the revisional application by the learned Court of Revision and the order impugned before the said learned Court of Revision, thus, do not seem to suffer from any such illegality or impropriety so as to justify any interference by this Court. (32). IN the considered opinion of this Court, the learned Courts have been perfectly justified in being guided by the principles as laid down in the Adalat prasad case (supra) and in such view of the matter, the orders passed by the two learned Courts of Revision in connection with C. R. No. 157 of 2005 as well as in C. R. No. 22 of 2006 do not seem to suffer from any such illegality which can justify any interference by this Court. (33). THE issues involved in the two cases being C. R. R. No. 1719 of 2006 and c. R. R. No. 3119 of 2006, thus, do not seem to have any merit. The same be dismissed. Interim orders, if any, in connection with the said two applications stand vacated. (34). LEARNED Trial Courts are directed to proceed with the cases under reference as expeditiously as possible. (35). THIS, however, will certainly not prevent the petitioners in the two applications from seeking necessary redress in accordance with law. (36). SEND copy of this judgment to the learned Trial Court as well as learned court of Revision for information and necessary action. (37). CRIMINAL Department is directed to supply xerox certified copy of this judgment, if applied for, to the learned Counsel for both parties after due compliance with the formalities as expeditiously as possible. Appeals dismissed.