JUDGMENT & ORDER : (Prayer: Criminal Miscellaneous Petition No.1167 of 2019 filed under Section 482 of Cr.P.C., to recall the Judgment passed by this Court in Crl.A.No.413 of 2006 dated 14.09.2018.) 1. The above petitions have been filed praying for recall of the Judgment dated 14.9.2018 passed by this court in Criminal Appeal Nos.94 to 96, 150, 151, 152, 153, 154, 155 to 157, 183, 184, 185 and 403 to 416 of 2006 by the 3rd Accused/3rd Respondent. This court had earlier by a common judgment dated 14.09.2018 had set aside the judgment of acquittal against the petitioner and two others. The details of the criminal appeal and the C.C.Nos. are extracted in the Judgment dated 14.9.2018. 2. The above petitions have been filed interalia on the following grounds: (a) That this court by two orders dated 5.12.2017 and 6.12.2017 had transferred all the appeals to the court of session based on the amendments to the Cr.P.C., which gave a right to the complainant to challenge the judgment of acquittal in the case tried by the Magistrate before the sessions court. It is the case of the petitioners that these two orders were not recalled in the manner known to law and that the appeals were posted for hearing subsequently before two other learned judges and thereafter posted before this court for final hearing. Hence, the hearing made by this court and the subsequent judgment passed is without jurisdiction. (b) That the records of the case were not sent to this court and that in the absence of original records, the appeal should not have been heard and decided as mandated under Section 386 of Cr.P.C. 3. The Respondent had filed a common counter affidavit stating that it is a fact that this court on 5.12.2017 and 6.12.2017, transferred all the appeals to the court of session, and that thereafter the cases were listed on 21.12.2017 as per the court slip dated 19.12.2017. The affidavit further states that on 21.12.2017, all the criminal appeals were taken for hearing and that the earlier orders of transferring the cases to the session’s court were orally recalled in the presence of both the counsels. 4. I heard Mr.N.R.Elango, learned Senior Counsel for Mr.K.R.Ramesh Kumar, learned counsel for the petitioners and Mr.G.Ravikumar, learned counsel for the respondents in all the cases and perused the entire materials available on record. 5. 4. I heard Mr.N.R.Elango, learned Senior Counsel for Mr.K.R.Ramesh Kumar, learned counsel for the petitioners and Mr.G.Ravikumar, learned counsel for the respondents in all the cases and perused the entire materials available on record. 5. Mr.N.R.Elango, learned Senior Counsel reiterated the grounds raised in the petition with particular emphasis on the fact that the earlier orders of the court dated 5.12.2017 and 6.12.2017 were not recalled and hence, the subsequent hearing and the judgments of this court setting aside the acquittals is without jurisdiction. The learned senior counsel cited the judgment of the Hon’ble Apex court in the case of State of Punjab vs. Davinder Pal Singh Bhullar and others, etc., reported in (2011) 14 SCC 770 to buttress his submission that this court can recall its order by invoking Section 482 or Cr.P.C., when the judgment has been passed without jurisdiction or in violation of principals of natural justice and that such a recall order would not be a bar under Section 362 Cr.P.C. The learned counsel also relied upon the judgment of the Hon'ble Apex Court passed in (1971) 1 SCC 855 Shyam Deo Pandey and others vs the State of Bihar, in which the Hon'ble Apex Court has held that the perusal of records is mandatory in order to dispose of the appeal. On facts, he submitted that in the present case, the original records were not available at the time of final hearing. In fact, it is also seen from the records, that the records pertaining to only five appeals out of twenty eight appeals were sent to this court by the Trial court and that too after the appeals were heard. The other records were not sent because they were destroyed. In other words, the learned senior counsel pointed out that this court did not have the benefit of original records at the time of hearing. 6. Per contra, Mr.G.Ravikumar, learned counsel for the respondent submitted that the earlier orders dated 5.12.2017 and 6.12.2017 transferring the cases to the sessions court were orally recalled by the learned judge, who passed the orders on 5.12.2017 and 6.12.2017 and that the present recall petitions are an abuse of process of court filed only with a view to stall the course of law pursuant to the judgment of conviction by this court. He would further submit that no case has been made out by the petitioners for recall of the judgment of this court. He cited the following judgments to show that this court becomes functus officio once the order is signed: (a) (2001) 1 SCC 169 Hari Singh Mann vs Harbhajan Singh Bhajwa and others (b) (2001) 4 SCC 752 State of Kerala vs M M Manikantan Nair (c) (2012) 11 SCC 427 Motilal vs State of Madhya Pradesh 7. This court perused the records available and found that there are two orders passed by this court one on 5.12.2017 and another on 6.12.2017, which are extracted below: “Order dated 05.12.2017 For the sake of convenience, the appellant and the respondent are referred to as complainant and accused. 2. The complainant initiated prosecutions in C.C.Nos.6199 of 1998, 4887 of 1999 and 4225 of 2001 before the learned XVII Metropolitan Magistrate, Saidapet, Chennai for an offence under Section 138 of the Negotiable Instruments Act, 1881 against the accused, in which, the accused was acquitted by Judgments dated 20.07.2005 aggrieved by which, the complainant is before this Court. 3. In view of the Judgment of a Full Bench of this Court in S.Ganapathy v. N.Senthilvel [(2016) 3 MLJ (Crl.) 641 (FB)], this Court has no jurisdiction to entertain these appeals and therefore, the Registry is directed to transmit all the papers relating to these appeals to the learned Principal Sessions Judge, Chennai, within a period of six weeks from the date of receipt of a copy of this order, after retaining the photocopies of the same on file. 4. The complainant and the accused are directed to appear before the learned Principal Sessions Judge, Chennai, on 17.01.2018 at 10.30 a.m. 5. A perusal of the records shows that though notice has been issued to the accused, the accused has not received the same. Therefore, the learned Principal Sessions Judge, Chennai is directed to issue notice to the accused, if he has not been served so far and does not turn up on 17.01.2018. 6. Since all these matters pertain to the year 1998, 1999 & 2001 the learned Principal Sessions Judge, Chennai is directed to dispose of the matter as expeditiously as possible. 7. 6. Since all these matters pertain to the year 1998, 1999 & 2001 the learned Principal Sessions Judge, Chennai is directed to dispose of the matter as expeditiously as possible. 7. With the above directions, Crl.A.Nos.94, 95 and 96 of 2006 is disposed of.” “Order dated 06.12.2017 “For the sake of convenience, the appellants and the respondents are referred to as complainants and accused. 2. The complainant initiated prosecutions in C.C.Nos.6355 of 1999, 7224 of 1999, 2430 of 1998, 591 of 1998, 6598 of 1998, 2360 of 1998 & 6599 of 1998, 756 of 1999, 760 of 1999, 1319 of 1999, 3223 of 1999 & 3224 of 1999, 4222 of 2001, 4323 of 1999, 4324 of 1999, 5753 of 1999, 8498 of 1999, before the learned XVII Metropolitan Magistrate, Saidapet, Chennai, for the alleged offences punishable under Section 138 of Negotiable Act, against the accused, in which, the accused 1 to 3 were acquitted by judgments dated 20.07.2005 aggrieved by which, the complainants are before this Court. 3. In view of the Judgment of a Full Bench of this Court in S.Ganapathy v. N.Senthilvel [(2016) 3 MLJ (Crl.) 641 (FB)], this Court has no jurisdiction to entertain these appeals and therefore, the Registry is directed to transmit all the papers relating to these appeals to the learned Principal Sessions Judge, Chennai, within a period of four weeks from the date of receipt of a copy of this order, after retaining the photocopies of the same on file. 4. The complainants and the accused are directed to appear before the learned Principal Sessions Judge, Chennai, on 17.01.2018 at 10.30 a.m. 5. Since the complaints of the year 1998, 1999 and 2001, the learned Principal Sessions Judge, Chennai is directed to dispose of the Criminal Appeals as early as possible. 6. With the above observations, the present Criminal Appeals stand disposed of. Consequently, connected miscellaneous petitions are closed.” 8. The records further show that these cases were listed once again before the same learned judge on 21.12.2017 and both the parties have made their submissions before the learned judge. The cases, it appears were adjourned and finally were listed before me on 21.3.2018. Both the counsels made their submissions and after hearing them, this court reserved orders and pronounced judgment on 14.9.2018 setting aside the judgment of acquittals passed in the trial court. 9. The cases, it appears were adjourned and finally were listed before me on 21.3.2018. Both the counsels made their submissions and after hearing them, this court reserved orders and pronounced judgment on 14.9.2018 setting aside the judgment of acquittals passed in the trial court. 9. When this court pointed out to Mr.G.Ravikumar, learned counsel for respondents that the records do not show the recall of earlier orders dated 5.12.2017 and 6.12.2017 referred supra. Mr.G.Ravikumar stated that he would file an affidavit to the effect that those two orders were orally recalled in his presence. On 11.2.2019, Mr.G.Ravikumar filed an affidavit of which para 8 is extracted below: “I state that while this so, all the criminal appeals filed by the respondent/complainant were listed by the registry before this Hon’ble High court on 21.2.2017 as per the court slip dated 19.12.2017 issued by the Court to recall earlier orders. Accordingly, all the appeals listed on 21.12.2017 as FINAL HEARING CASES before this court as following item numbers as per cause list dated 21.12.2017. Item No. as per cause list of this Hon'ble Court dated 21.12.2017 Criminal Appeal No. (All the 28 appeals) 1 C.A.Nos.94 to 96 of 2006 2 C.A.No.150 of 2006 3 C.A.No.151 of 2006 4 C.A.Nos.155 to 157 of 2006 5 C.A.Nos.183, 184, 154 of 2006 6 C.A.No.185 of 2006 7 C.A.No.403 of 2006 8 C.A.Nos.404 to 416 of 2006 On 21.12.2017, all the above criminal appeals came up for hearing and earlier orders were orally recalled in the presence of the respective counsels. The representative/Authorised Signatory of respondent/complainant company Ms.Hema Jothi was also present in court on 21.12.2017. Subsequently, all these appeals were adjourned for 3 weeks for final hearing by this Court. 10. This court requested the counsel for the petitioners also to file an affidavit, although this court is aware that affidavits of parties cannot substitute the matters pertaining to records available in this court. This court made that request only to understand as to what transpired in court. The counsels for the petitioners filed an affidavit of which para 2 is extracted below: “I submit that a batch of Appeals were listed on 6.12.2017 before this Court and this court expressed the view to transfer the Criminal Appeals to the Court of Session, Chennai. This court made that request only to understand as to what transpired in court. The counsels for the petitioners filed an affidavit of which para 2 is extracted below: “I submit that a batch of Appeals were listed on 6.12.2017 before this Court and this court expressed the view to transfer the Criminal Appeals to the Court of Session, Chennai. I came to know late that another batch of connected Appeals were listed before the same Hon’ble Judge on 5.12.2017 and they were also transferred to the Court of Sessions. I was not present in Court on 5.12.2017. There after the matter was listed on 21.12.2017 before the same Hon’ble Judge before whom the matter was listed on 6.12.2017. The Hon’ble Judge on 21.12.2017 expressed that, Her Lordship had powers to take up the cases. Thereafter it is a matter of record that the Appeals were listed before two other Hon’ble Judges. Ultimately, this Court heard the case and was pleased to set aside the judgment of Acquittal”. 11. This court had given its anxious consideration to the submissions made by the counsels, the affidavits filed by the parties and the respective counsels and the records of the case. This court finds that there is no order recalling the order dated 5.12.2017 and 6.12.2017 passed by another learned judge of this court. Even according to the learned counsel for the respondent there was only an oral order. The counsel for the petitioners would dispute the same. Assuming for a moment that there was an oral order for recall, the point for consideration would be whether it is valid and sustainable in law. The powers of this court for recall have been dealt with by the Hon’ble Apex Court in Davinder Pal Singh case referred supra. In this case all the three cases cited by the counsel for the respondent have been referred to in para 26 and the Hon’ble Apex court held that the recall of order under section 482 of Cr.PC is different from review under section 362 Cr.PC. In this case all the three cases cited by the counsel for the respondent have been referred to in para 26 and the Hon’ble Apex court held that the recall of order under section 482 of Cr.PC is different from review under section 362 Cr.PC. The relevant paragraph 27 is extracted hereunder: “If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers cane be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity ad the provisions of Section 362 Code of Criminal Procedure, would not operate. In such eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power to recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/alteration has to establish that it was not at fault.” 12. That the above judgment makes it clear that orders and judgments passed in appeal cannot be recalled unless any one of the four circumstances mentioned above available to show that the judgment is a nullity. If that test is applied the orders dated 5.12.2017 and 6.12.2017 have attained finality and hence, cannot be recalled or set aside by an order in the absence of the grounds mentioned in Bhullar’s case even by a written order. Hence, there cannot be an oral order to recall these two orders. That apart, there is no indication anywhere in the record to suggest that such an oral order was in fact passed. Though the counsels for both the parties have proceeded on the basis that the earlier orders dated 5.12.2017 and 6.12.2017 were recalled and made their submissions before this court, this court cannot shut its eyes to the records, which are now being pointed out by the counsel for the petitioners. 13. The learned Senior Counsel for the petitioners is also right in pointing out that this court, ought not to have heard the appeal in the absence of original records. Even today, the original records are not available except in five appeals. 13. The learned Senior Counsel for the petitioners is also right in pointing out that this court, ought not to have heard the appeal in the absence of original records. Even today, the original records are not available except in five appeals. The reports of the trial court as well as that of the Chief Metropolitan Magistrate are to the effect that the records pertaining to the remaining criminal appeals have been destroyed. The judgments of the apex court cited by the learned Senior counsel in Shyam Deo pandey’s case referred supra will squarely apply to the facts of this case. The Hon'ble Apex Court in para-18 to 21 was pleased to emphasis the importance of records of the case, while interpreting the expression “after perusing such record” occurring in Section 423(1), which is equivalent to Section 386 under the present code. This court is of the view that these appeals ought not to have been heard in the absence of original records. In fact, the importance of original records for hearing criminal appeals have been stated by this court in “Sevugaperumal and others vs. Emperor reported in (1943) MWN Cr. 23 and by the Hon'ble Apex Court in Bani Singh vs State of UP (1996) 4 SCC 720 and in Dharampal vs. State of UP reported in (2008) 17 SCC 337 . The reasons for the said view is not far to seek. Many a time, the learned counsels for the parties may miss points in their favour and the courts cannot be only dependant on counsels’ assistance. Perusal of records, is therefore, necessary for this court to take a decision. 14. In the light of above discussion, (a) this court holds that the orders of the other learned judge of this court passed on 5.12.2017 and 6.12.2017 in the above appeals are final and hence all these appeals have to be transferred to the court of Sessions. This court is informed that similar appeals between the same parties are now pending before the learned XVI Additional Sessions Judge, Chennai. Hence, all these cases are directed to be transferred to the said court in terms of the earlier orders of this court dated 5.12.2017 and 6.12.2017. This court is informed that similar appeals between the same parties are now pending before the learned XVI Additional Sessions Judge, Chennai. Hence, all these cases are directed to be transferred to the said court in terms of the earlier orders of this court dated 5.12.2017 and 6.12.2017. (b) Since the earlier orders dated 5.12.2017 and 6.12.2017 of this court in the above appeals are final, this court’s common judgment dated 14.9.2018 in the above appeals are without jurisdiction and is hence recalled. (c) Since the records have been destroyed, the trial court is directed to reconstruct the records by adopting the procedure known to law and may send those records to the learned XVI Additional Sessions Judge for the purpose of enabling him to hear these appeals. Both the parties are directed to co-operate with the trial court and render all assistance to enable it to reconstruct the records. (d) It is needless to point out that the sessions court will hear the appeals and decide the same uninfluenced by the observations made by this court in its judgment dated 14.9.2018, which is now been recalled by this order. No costs.