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2013 DIGILAW 1515 (RAJ)

Keshri Vanaspati Products Ltd. v. Jua Trading Co.

2013-09-03

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant misc. petition has been filed by the petitioners challenging the order dated 8.4.2010 passed by the learned Judicial Magistrate, Pratapgarh in Complaint Case No. 391 of 2012 (13 of 2012), titled as "M/s. Jua Trading Company v. Keshari Vanaspati Products Ltd., Jaipur ". 2. The respondent No. 2 filed a complaint in the year 2002 against the Firm Keshari Vanaspati Products Ltd. and its partners Vijay Seth the petitioner No. 3 herein and Sanjay Seth in relation to the dishonour of a cheque for a amount of Rs. 26,61,734/-.The Trial Court has spent precious time of a about 10 years in the case to effect service of the complaint on the accused No. 4 Sanjay Seth, who is none other than the petitioner No. 3s brother. Ultimately, when despite repeated efforts, the accused No. 4 could not be served, the Court feeling the need to carry on with the proceedings, declared the accused Sanjay Seth to be at absconder and issued a standing bailable warrant against him. The Court separated the proceedings of the complaint qua the petitioners by order dated 8.4.2010. The petitioners, who luckily enough are reported to be participating in the trial, have now assailed the order dated 8.4.2010 by way of the instant misc. petition. 3. Learned counsel for the petitioners places reliance on the judgment passed by the Court in the case of Patodia Oil Mill & Anr. v. Prasanna Kumar Surana & Ors., reported in 2007 (2) CrLR (Raj.) 1438 and urges that the separation of the proceedings against the petitioners was uncalled for. He submits that unless and until the remaining partner of the firm is served, the trial cannot proceed against the petitioners separately. 4. Heard and considered the arguments advanced at the bar and perused the order impugned as well as the judgment rendered this Court in the case of Patodia Oil Mill. 5. In the case of Patodia Oil Mill, the Trial Court closed the proceedings against some of the partners of the firm and directed continuance of proceedings against one accused. In those peculiar facts and circumstances, the Court held that the continuance of proceedings against the sole partner whilst closing the proceedings against some of the partners of the firm was uncalled for. Present is not such a case. In those peculiar facts and circumstances, the Court held that the continuance of proceedings against the sole partner whilst closing the proceedings against some of the partners of the firm was uncalled for. Present is not such a case. In the case at hand, the Trial Court is still proceeding to have the process served on the co-accused Sanjay Seth i.e. the petitioner No. 3s brother and at the same time, feeling that the proceedings are greatly delayed, has separated the proceedings qua the remaining accused. Such a course of action was rightly adopted by the Trial Court in view of the fact that one of the accused had absconded. As a matter of fact, the Trial Court has dealt with the co-accused Sanjay Seth very leniently and has simply issued a bailable warrant to effect service upon him. The finding of the Trial Court was that the accused Sanjay Seth was not being serviced despite repeated efforts over a long period of time and accordingly he was declared an absconder. Once, the accused was declared absconding, the Trial Court was under an obligation to issue a standing warrant of arrest against him rather than the bailable warrant. 6. The fact that the petitioners have challenged the order dated 8.4.2010 in the year 2013 clearly shows that the intention of the petitioners is just to delay the trial of the case by adopting one means or the other and nothing beyond that. The misc. petition is thus found to be vexatious and frivolous liable to be rejected while imposing appropriate cost on the petitioners. 7. The Hon'ble Apex Court in the case of Mary Angel & Ors. v. State of Tamil Nadu, reported in AIR 1999 SC 2245 , held that the filing of vexatious and frivolous petition under Section 482 CrPC was a ground enough to burden the party concerned with exemplary cost. The Hon'ble Apex Court observed as under : "The question involved in this appeal is whether the High Court has jurisdiction to impose exemplary cost of Rs. 10,000/- to be paid by each of the appellants while rejecting a frivolous or vexatious petition under Section 482 of the Criminal Procedure Code for setting aside the charge framed against the appellants? 12. 10,000/- to be paid by each of the appellants while rejecting a frivolous or vexatious petition under Section 482 of the Criminal Procedure Code for setting aside the charge framed against the appellants? 12. From the aforesaid decisions, it is apparent that if there is an express provision governing the particular subject matter then there is no scope for invoking or exercising the inherent powers of the Court because Court is required to apply, in the manner and mode prescribed, the provisions of the statute which are made to govern the particular subject matter. But the Highest Corut in the State could exercise inherent powers for doing justice according to law where no express power is available to do a particular thing and express power do not negative the existence of such power. It is true that under the Criminal Procedure Code, specific provisions for awarding costs are only those as stated above. At the same time, there is no specific bar that in no other case, costs could be awarded. 22. In the result, we hold that while exercising inherent jurisdiction under Section 482, Court has power to pass such orders (not inconsistent with any provision of the Code) including the order for costs in appropriate cases, (i) to give effect to any order passed under the Code; or (ii) to prevent abuse of the process of any Court; or (iii) otherwise to secure the ends of justice. As stated above, this extraordinary power is to be used in extraordinary circumstances and in a judicious manner. Costs may be to meet the litigation expenses or purposes can be exemplary to achieve the aforesaid purposes." As this Court has held that the petition filed by the petitioners is frivolous and vexatious having been filed with deliberate intention of delaying the trial and nothing beyond that, the petitioners deserve to be burdened with exemplary costs.Accordingly, the misc. petition is rejected while imposing a cost of Rs. 10,000/-upon the petitioners. The petitioners shall deposit the cost of Rs. 10,000/- in the Trial Court and thereafter only, they shall be permitted to cross-examine the complainant if such action has already not been undertaken hereinbefore. If the complainant has already been cross-examined, the petitioners shall be permitted to lead defence only an deposition of cost of Rs. 10,000/-. Out of the cost of Rs. 10,000/-, Rs. 10,000/- in the Trial Court and thereafter only, they shall be permitted to cross-examine the complainant if such action has already not been undertaken hereinbefore. If the complainant has already been cross-examined, the petitioners shall be permitted to lead defence only an deposition of cost of Rs. 10,000/-. Out of the cost of Rs. 10,000/-, Rs. 5,000/- shall be paid to be complainant and the remaining amount of Rs. 5,000/- shall be appropriated in the funds of the District Legal Service Authority.The Trial Court is also directed to issue a standing warrant of arrest against the absconding accused Sanjay Seth. The warrant of arrest shall be served through the Commissioner of Police, Jaipur. The Trial Court shall ensure that the warrant of arrest is served at the earliest. The Trial Court shall be at liberty to issue appropriate instruction/directions to the serving officers for effecting the service of warrant of arrest on the accused. It is expected of the Trial Court to initiate proceedings under Secs. 82, 83 of the CrPC against the absconding accused at the appropriate moment.Petition Dismissed. *******