Criminal P.C. 1973 – Section 362 – Recall Application – Essential ingredients to recall the earlier order – the applicant under the garb of recall or modification application cannot re-agitate the matter on merit by pressing a ground though raised was not pressed or even if not raised cannot be permitted to be raised subsequently.
Hon’ble Suneet Kumar,J.
Crl. Misc. Recall Application No. 126367 of 2016
APPLICATION U/S 482 No. – 5938 of 2016
Applicant :- Virendra Kumar Anand @ V.K. Anand
Opposite Party :- State Of U.P. And 2 Others
Counsel for Applicant :- Manu Saxena Counsel for Opposite Party :- G.A.
By means of this recall application, the applicant seeks to recall order dated 28.3.2016, whereby the petition was disposed of directing the court below to conclude the trial under
Section 138 of Negotiable Instrument Act 1881 (N.I.Act)
expeditiously within a stipulated period without granting unnecessary adjournment.
The applicant herein sought quashing of proceedings of complaint case No. 3255 of 1999 (Rajendra Swarup Dixit Vs. Aneja Consultancy and another), filed under Section 138 of N.I. Act. The petition under Section 482 Cr.P.C was filed by Sri Manu Saxena, learned counsel for the applicant. The matter was argued at length by the counsel, thereafter, petition was disposed of. The present recall application has been instituted by a subsequently engaged counsel, Sri Anil Tiwari, along with the earlier counsel, who appeared to press the recall application.
The assertions made in the recall application are on the merit of the case stating therein that the cheques in question was signed by the applicant as authorized signatory of a proprietor firm M/s Aneja Consultancy, therefore, the applicant would not be liable for prosecution. Upon being summoned the applicant, as well as, Chief Managing Director of the firm, filed objection against the summoning order and an application for discharge. Discharge application was rejected against which the applicant filed a petition being Crl. Misc. Writ Petition No. 7015 of 2001, wherein, vide order dated 6.12.2001, further proceedings of complaint case against petitioner/applicant was stayed. The writ petition was subsequently dismissed in default on 3.4.2015 and remains as such till date. It is sought to be contended that thereafter on the issuance of warrant, the entire proceedings of complaint was challenged in proceeding under section 482 Cr.P.C which was disposed of by this court, order passed therein is being sought to be recalled. It is sought to be contended that unless the firm is prosecuted, the official of the firm as such cannot be prosecuted in view of Section 141 N.I. Act. Reliance has been placed upon
Aneeta Hada Vs. Godfather Travels and Tours (P) Ltd, 2008(13) SCC 703.
It is further contended that the applicant is prepared to deposit the entire sum due before this Court to show his bonafide, therefore, the legal questions that is being raised in the recall application be decided by this Court.
Sri Anil Tiwari, learned counsel for the applicant would contend that the complaint filed under Section 138 NI Act against the applicant is misuse of process of court, the applicant is authorized signatory of the cheque and is not responsible for the affairs of the firm, further, the cheque was issued by a proprietor firm, therefore, the applicant cannot be prosecuted for an offence under Section 138 not being the account holder.
Be that as it may, the recall application is gross misuse of process of the court. It is not the case of the applicant that his counsel was not heard, it is also not the case of the applicant that the submission advanced before the Court was not taken into consideration, therefore, the order as such cannot be recalled. In this background, in my opinion, the present application is misconceived, under the garb of recall application, the matter cannot be reagitated on merit, whatever was argued and pressed by the learned counsel before the Court was considered and accordingly order was passed. The ground that are being sought to be pressed through the recall application was neither raised nor pressed when the matter was argued by the previous counsel. Further, conduct of the applicant is also not bona fide as it was clearly pleaded that earlier he had assailed the summoning order and order rejecting the discharge application in a petition being Crl. Misc. Writ Petition No. 7012 of 2001 before this court, in which an interim order was granted on 6.12.2001 staying further proceedings of the complaint case. The writ petition came to be dismissed on 3.4.2015 for non prosecution. In paragraph 16 of the petition filed subsequently under Section 482 Cr.P.C, it was averred “that the matter with regard to discharge of the applicant therefore concluded and now the Court below is proceeding further with criminal case pending before the court below”. The plea that is being sought to be taken in the recall application was also raised in the petition under Section 482 Cr.P.C in para 19. The recall application would not state as to whether any application was filed to restore the criminal misc. writ petition which was dismissed in default, therefore, in absence of such an assertion the order passed on discharge application attained finality.
Full Bench of five Judges in
Mahesh Vs. State, 1971 ALJ page 668
“the legal position can be summarized by laying down that the High Court is not possessed of general power to review, revise or reconsider the judgment or order duly pronounced in criminal appeal or a criminal revision, though the judgment or order can be so reviewed, revised or reconsidered in exceptional circumstances in exercise of the inherent power under Section 561-A (presently section 482), Cr.P.C, provided that the inherent power is so exercised for one of the three purposes detailed therein”.
There is no power of review with the criminal court after the judgment has been rendered. The High Court can alter or review its judgment before it is signed. When an order is passed, it cannot be reviewed. Section 362 Cr.P.C is based on an acknowledged principle of law that 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 is dis-entitled to entertain a fresh prayer for any relief unless the former order of final disposal is set aside by a court of competent jurisdiction in a manner prescribed by law. The court becomes functus officio the moment the order for disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. There is also no provision for modification of the judgment. (Vide