- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.37 OF 2007 APPLICATION NO.37 OF 2007 APPLICATION NO.37 OF 2007 Walchand & Company Pvt.Ltd. ...Applicant vs. 1.Prabhudas B. Salla 2.Sudhakar S. Kasture 3.Madhav G.Pradhan 4.State of Maharashtra ...Respondents Mr.G.V.D’lima i/b M/s.D’lima & Associates for the applicant Mr.J.P.Yagnik A.P.P. for State Ms Rohini Dandekar i/b M/s.Berarwalla & Co. for Respondent Nos.1 to 3 CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : SEPTEMBER 25,2008 : SEPTEMBER 25,2008 : SEPTEMBER 25,2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. By order dated 11th August 2008, this court directed that the application will be heard finally at the stage of admission. 2. The Applicant is the complainant in a complaint filed under section 138 r/w 141 of the Negotiable Instruments Act,1881. In the said complaint, process was issued against the Respondents and others. An application was made by the 1st to 3rd Respondents (accused in the complaint) praying for recall of the order issuing process and for discharge. The said application was rejected by the learned Magistrate by order dated 29th January 2005 by holding that in view of the decision of the Apex Court in the case of Adalat Prasad Vs. Rooplal Jindal and others [2004 (4) Mh.L.J. page 274], the - 2 - application made by the said Respondents was not maintainable. A Revision Application under section 397 of the Code of Criminal Procedure,1973 was preferred by the 1st to 3rd Respondents for challenging the said order dated 29th January 2005. In the said Revision Application, there was a delay. By the order impugned dated 10th November 2006 passed by the learned Additional Sessions Judge, the delay has been condoned. 3. The criminal Application No.3295 of 2006 was filed by the Applicant in this court. The applicant had applied before the Sessions Court for transfer of the Application for condonation of delay. The said application for transfer was rejected. Criminal Application No.3295 of 2006 was filed by the Applicant for challenging the order rejecting the Application for transfer. By order dated 5th October 2006, the said application was rejected by this Court. However, this court directed that the learned Additional Sessions Judge will have to consider the objection raised by the Applicant as regards the maintainability of the Revision Application. 4. At the time of hearing of the Application for condonation of delay, an objection was raised by the Applicant that the application for recall/discharge was itself not maintainable in view of the law laid down by the Apex Court and therefore, there was no question of entertaining a Revision Application - 3 - against the said order. By the impugned order, the learned Additional Sessions Judge has condoned the delay and has held that the revision application was maintainable in the light of a recent decision of this Court. 5. The learned Counsel for the Applicant submitted that in view of the settled law laid down in the case of Adalat Prasad (supra), the application made by the 1st to 3rd Respondents before the learned Magistrate was not maintainable and therefore, there was no occasion for the Sessions Court to entertain the Revision Application against the said order. 6. The learned counsel for the 1st to 3rd Respondent placed reliance on the order dated 31st August 2005 passed by this Court in Criminal Writ Petition No.660 of 2006 and submitted that this Court has held that the said Revision Application is maintainable. Reliance was also placed on order dated 22nd October 2005 passed by this court in Writ Petition No.3112 of 1997. There learned counsel submitted that the Revision Application preferred by the first to third Respondents was very much maintainable. 7. I have given careful consideration to the submissions. Admittedly, the order impugned in the Revision Application filed by the 1st to 3rd Respondents is passed on an application made by the said Respondents, praying for recall - 4 - of process or for discharge. The said application was rejected by the learned Magistrate by passing an order which was impugned in this Revision Application. In view of the law laid down by the Apex Court in case of Adalat Prasad (supra), the application made by the said Respondents for recall of process was not maintainable. As a trial for an offence under section 138 of the said Act of 1881 was a summary trial, even the prayer for discharge was not maintainable. 8. Reliance placed by the learned counsel for the said Respondents on the decision of this Court in Criminal Writ Petition No.660 of 2005 will not help the said Respondents as what is held by this court is that a Revision Application for challenging the order of issue of process is maintainable. The order passed on 22nd June 2005 in Criminal Application No.3112 of 1997 is of no help to the petitioner as by the said order, on merits of the case, process issued under section 138 of the said Act of 1881 was quashed and set aside by this court. 9. As the application made by the said Respondents before the learned Magistrate was itself not maintainable in the light of decision of the Apex Court, there was no occasion for the learned Additional Sessions Judge to entertain a Revision Application against an order passed on the said Application by allowing the application for condonation of delay. Therefore, - 5 - impugned order will have to be quashed and set aside. 10. It must be stated here that the said Respondents can always adopt appropriate remedy for challenging the order of issue of process and this order will not come in the way of the said Respondents from adopting appropriate remedy. 11. Hence, I pass the following order : i) The impugned order dated 10th November 2006 is quashed and set aside. ii) Revision Application St.No.5580 of 2005 stands dismissed as the application made by the 1st to 3rd respondents for recall of process/ for discharge was not maintainable. iii) It is made clear that no adjudication has been made on merits of the pending complaint and on merits of the order issuing process. Notwithstanding this order, it will be open for the 1st to 3rd Respondents to adopt appropriate remedy for challenging the order of issue of process. JUDGE JUDGE JUDGE