Anuradha Priyadarshini & Anr. v. Isan Buildtech P. Ltd.

1. {t the very outset, counsel for respondent raises an objection with regard to the maintainability of these petitions.

2. Learned counsel for respondent submits that the petitioners had also preferred the sane set of petitions to seek quashing of the complaint cases filed by respondent No.2 under Section 138 of Negotiable Instruments Act, 1881 earlier and those petitions were withdrawn by these petitioners. Thus, accordingly vide orders dated 23'd December 2009, this Court hacl disrnissed those 12 set of petitions as withdrawn. Counsel fbr thc respondent further submits that no liberty rn'as either sought by the petitioners or was granted by this Court to file fresh petitions. Counsel for respondent also submits that at the time of institution of those earlier petitions, these petitioners were duly summoned by the learned Magistrate and vide orders dated 3l't March2009, exemption was sought by these petitioners from their personal appearance and after granting exemption to them, the learned Magistratc adjournecl the matter to 30th July 2009. Page 4 of 1L \\ ? Learned counsel for respondent further submits that these petitioners were avoiding appearance before the leamed Magistrate and vide order dated 6tr' November 2009, learned Magistrate issued bailable warrants in the sum of Rs. 10,000/- against these petitioners returanable before 2nd March

2010.

3. fhe contentions raised by learned counsel for respondent is that the petitioners cannot take the plea that they were not yet summoned in the said cornplaint cases or they were not appearing in the said complaint cases. Rather, they were appearing through their duly appointed counsel. Learned counsel for respondent further submits that present petitions have also been filed by these petitioners based on identical ground and there is no fresh cause of action having arisen in favour of the petitioners to prefer thcse petitions. On the basis of aforesaid submissions, learned counsel for respondent states that the present petitions filed by the petitioners is a gross abuse of due process of law and in support of his contention, places reliance upon the judgment of the Apex Court in Rajinder Prasod v. Bashir &Ors.AIR 2001 SC 3S24,Nationsl Small fndustries Corporatiott Ltd. vs. Hormeet Sirtgh Paintsl and Anr.,(2010) 3 SCC 330 etc.

4. On the other hand, learned counsel for petitioners submits that the petitions earlier filed by petitioners were pre-matured as by that time, petitioners had not appeared before the learned Magistrate and those petitions were w'ithdrawn by the petitioners so as to first carrsc their Pase 5 of11 \{ appearance before the Magistrate and thereafter, to take steps to quashing of the complaint cases. Counsel for petitioners further submits that the petitioners have not suppressed any material facts from this Court and have also explained the reasons for filing the present petitions after the earlier petitions having been withdrawn by them. Leamed counsel for petitioner further submits that the High Court is not denuded with its powers to exercise its inherent jurisdiction under Section 482 of Cr. P.C. to grant complete justice between the parties and that too in a case where matter has not been decided by this Court on merits. In support of his arguments, learned counsel for petitioners has relied upon a decision of the Apex Court in ^S.M.S. Pharmaceaticols Ltd. vs. Neeta Bltallu snd Attother, Q,007) 4 SCC 70, with emphasis on para 27 of the judgment, etc.

5. I have heard learned counsel for the parties and given my thoughtful consideration to the arguments advances by them. Respondent No. 1 company has filed 12 complaint cases under Section 138 of Negotiable Instruments Act, 1881 against l\t[/s. Tirupati Developers and Builders stated to be a partnership firm comprising of these petitioners as partners alongwithMr.RajivRanjan Kumar. All these three partners of M/s. Tirupati Developers and Builders have been impleaded in the said complaint cases filed by the complainant company. These petitions have been prefened by two petitioners, who have been impleaded as accused Page 6 of 1I )b IJ No.2 and 3 in the said complaint cabes in their capacity as the partners of the said firm. The main ground taken by the petitioners to challenge the said complaint cases in these petitions are that they were only sleeping partners in the said partnership firm and never took any active part in any of the affairs of the said firm. It is also the case of the petitioners that the petitioner No.l is a house wife while the petitioner No.2 is farmer by occupation and therefore, they were not concerned with the day to day affairs of the accused partnership firm. It is also the case of the petitioners that they were not the signatories of the dishonoured cheques and neither had entered into any kind of agreement with the complainant and now they had received a demand notice regarding dishonour of the cheques forming thc subject matter of all the complaint cases.

6. Primarily, objections raised by learned counsel for the respondent is on the maintainability of these petitions. Contention of counsel for respondent No. 2 is that earlier also the petitioner had preferred these petitions invoking the inherent jurisdiction under Section 482 of Cr.P.C. but all the said petitions were withdrawn by these petitioners through their counsel without reserving any kind of liberty to challenge the said complaint cases or the order of summoning, by approaching this court again. Counsel for respondent also took a stand that there are no change in circumstances as in the earlier petitions based on the same facts, these petitions were filed and filing of these petitions on the same ground and. i) -r /'t:' \Y on the same cause of action is abrasion act of gross abuse of due process of the court on the part of the petitioners. Counsel for the petitioners, on the other hand, has taken a stand that since at the time of filing of earlier petitions, the petitioners had not appeared before the trial court therefore, it was considered pre-mature to press the said petitions and therefore they were withdrawn without addressing arguments on merits. Learned counsel for petitioners also contended that since there is no decision on the merits of the case therefore, the petitioner will be well within their rights to approach this court for invoking inherent jurisdiction under Section 482 of Cr.P.C. to seek justice on behalf of the petitioners, who are not liable to face the trial of these complaint cases and they had no role in the entire transaction entered into between the complaint company and accused firm and nor they had issued the dishonoured cheques and not even have received any demand notice from the complainant. Counsel also took stand that the settled legal position fully supports the case of the petitioners and therefore, petitioners have very strong case on merits to succeed in these petitions.

7. The argurnents canvassed by counsel for petitioners looks attractive at the first instance but if accepted, the same would set a wrong precedent. Withdrawal of any case by the counsel is well thoughtful and conscious decision and at times, the counsel withdraws the case when not able to _ persuade the court for issue of the notice in the matter. Petitioners have Pase 8 of11 \K not denied the fact that there is no change of circumstances or a challenge to any fresh order in the present petitions. In the earlier petitions also, a challenge to the order of summoning and quashing of the complaint cases was sought mainly on the ground that these petitioners were the sleeping partners in the accused firm having no role in the transaction which lead to the issuance of the dishonoured cheques and hence cannot be held liable to face prosecution under Section 138 of Negotiable Instruments Act, 1881.

8. To say that the earlier petitions filed by the petitioners were premature as the petitioners were not summoned in the said complaint by that time is belied as perusal of order dated 31't March2009 shows that the petitioners appeared before the learned Metropolitan Magistrate in these complaint cases through their counsel and they were granted exemption from their appearance on the said date. On 6tr' November 2009, due to non-appearance of the accused persons, learned Metropolitan Magistrate directed the bailable warrants against them for the next date and therefore the earlier petitions which were preferred by these petitioners on 25tl' November 2009 cannot be said to be pre-mature as canvassed by counsel for petitioners. Plea taken by Counsel for the petitioners is not only an after-thought but also misconceived. Vide order dated 23'd December 2009 the earlier petitions were dismissed as withdrawn and it is admitted case between the parties that no liberty was either sought or granted by i<,[1] Page 9 ofll (' I this court for filing the said petitions again on the same cause of action.

9. No doubt inherent powers of the court under Section 482 of Cr.P.C. are very wide and it is also true that the courts have to be careful and conscious in exercise of such discretionary powers not only to do a complete justice between the parties but to see that exercise of such inherent powers may not result in any abuse of process of the court. The petitioners in these matters have not come with any sufficient explanation nor have given any cogent reasons for filing these petitions after having withdrawn the earlier petitions based on the same grounds.

10. Dismissing the appeal of the appellant preferred on the ground that the High Court wrongly refused to entertain a subsequent revision petition in exercise of its inherent powers, the earlier revision petition having been dismissed as not pressed, the Apex Court in Raiender Prosod v. Basltir snd others, AIR 2001 SC 3524, held that " 7, We are of the opinion that when the earlier revision petition filed under Section 397 of the Code had been dismissed as not pressed, the accusedrespondents could not be allowed to invoke the inherent powers of the High Court under Section 482 of the Code for the grant of the same relief....The object of criminal trial is to render public iustice and to assure punishment to the criminals keeping in view that the trial is concluded expeditiously, Delaying tactics or protraciing the commencement or conclusion of the criminal trial are required to be curbed effectively, least the interest of public iustice may suffer.,, though the power of the High Court under Section 482 of the Code is very wide, yet the same must be exercised sparingly and cautiously particularly in a case where the petitioner is shbwn to Pase 10 ofll )-o l.t I have already invoked the revisional iurisdiction under Section 397 of the Code' Only in case where the High Court finds that there has heen failure of iustice or misuse of iudicial mechanism or procedure, sentence or order was not correct, the High Court ffiaY, in its discretion, prevent the abuse of the process or miscarriage of justice by exercise of iu risdiction under Section 482 of the Code." 1 1. In the light of the aforesaid discussion, this court is not inclined to exercise its inherent powers in favour of the petitioners as exircise of such powers in the facts of the present case will set a wrong precedent where the"petitioners after having withdrawn the earlier petitions without reserving their right to approach this court on the same cause of action, yet the petitioners have again filed these petitions on the same cause of action and such a practice, if permitted would be travesry ofjustice.

12. Without commenting upon merits of these petitions, finding no merit in the contentions raised by learned counsel for petitioners, these petitions are held to be not maintainable and the same are accordingly dismissed.

13. It is ordered accordingly. A l/l IW KAILASH GAMBTIIR, J APRIL I[7],2AL[3] pkb Paee ll ofll