IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI.WRIT PETITION NO.1333 OF 2008 ALONGWITH CRI.WRIT PETITION NO.482 OF 2008 RMZ Corp.Holdings Pvt Ltd. .. Petitioner Vs. M/s.CGS Thoughened Glass Pvt.Ltd.& Ors. .. Respondents Mr.K.G.Raghavan, Senior Advocate, i/by Mr.Anil T. Agarwal for the Petitioner. Mrs Sunita Dandige for the Respondent No.1. Mr.Y.S.Shinde, A.P.P for the State. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE : 10th July 2008. P.C.: . I have heard the submissions of the learned senior counsel appearing for the petitioners in both the petitions. The challenge in these two petitions filed under Article 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure, 1973 is to an order issuing process on a private complaint filed by the 1st respondent. The prayer is for quashing the order issuing process. The submission made by the learned senior counsel in short is that on plain reading of the averments made in the complaint, no offence was : 2 : made out. The second submission is that the dispute is of purely civil nature and infact the 1st respondent has already filed a summary suit for recovery of money against the petitioner and other concerned respondents. 2. When the attention of the learned senior counsel appearing for the petitioner was invited to a decision of learned single Judge of this Court in the case of V.K.Jain and others Vs. Pratap Padode and another (2005 (3) Maharashtra Law Journal 778), he placed reliance on a decision of another learned single Judge of this Court in the case of Vishwanath Ramkrishna Patil & Anr. Vs. Ashok Murlidhar Sonar & Anr (2006 (5) Mh.L.J. 671) and submitted that in view of conflict between two decisions a reference will have to be made to a larger bench. He submitted that in any event the decision in the case of V.K.Jain (supra) needs reconsideration. The learned senior counsel submitted that notwithstanding the availability of the remedy of a revision under section 397 of the said Code, this Court can always entertain a petition under Article 227 of the Constitution of India and/or section 482 of the said Code for quashing a private complaint. 3. I have carefully considered the submissions. In : 3 : the case of V.K.Jain (supra) in paragraphs 26 and 27, the learned single Judge of this Court held thus: "26. If one bears in mind the principle laid down in the case of Madhu Limaye in relation to the exercise of power of the High Court under section 482 of the Criminal Procedure Code, it is clear such power should not be resorted to if there is specific provision in the Code for the redress of the grievance of the aggrieved party. As observed earlier, the applicants have an efficacious remedy of preferring revision in respect of the order of the Magistrate issuing process. Thus, as there is a specific provision in the Code for redressal of the grievance of the applicants, in my opinion, it would be appropriate that the applicants prefer a revision against the order of the Magistrate issuing process. This is the position in respect of application under section 482 Criminal Procedure Code. As far as Writ Petitions seeking similar reliefs i.e quashing of process or proceedings in which process has been issued, are concerned, it would be : 4 : advantageous to refer to a decision by five Honourable Judges of the Supreme Court in the case of Thansingh Nathmal Vs. The Supdt. of Taxes Dubri & Ors. reported in AIR 1964 SC 1419. In the said decision, it has been observed that when there is an efficacious alternate remedy, a Writ Petition ought not be entertained. Thus, as in my view the accused person has an efficacious remedy of preferring revision before the Sessions Court such Writ Petitions ought not to be entertained and the aggrieved persons ought to be given liberty to prefer revision before the Sessions Court. 27. Thus as in my opinion, where the applicants have an efficacious remedy of preferring revision before the Sessions Court against the order issuing process they should not be deprived of the same. Hence, in view of the discussion in the foregoing paras, in my opinion, it would be appropriate that the applicants prefer a revision before the concerned Sessions Court against the order issuing process against them." : 5 : 4. There is another decision of this Court in the case of Bharat S.Dahanukar Vs. State of Maharashtra & Anr (2007 (2) Mh.LJ 859) wherein a contention was raised that the decision in the case of V.K.Jain (supra) is contrary to the law laid down by the Apex Court. It was also argued that the decision in the case of V.K. Jain (Supra) requires reconsideration. After considering the submissions made, this Court in paragraph Nos.11 and 12 of the said decision held thus: "11. The The The ratio of the decision in the case of ratio of the decision in the case of ratio of the decision in the case of V.K.Jain V.K.Jain V.K.Jain (supra) is not that availability of a (supra) is not that availability of a (supra) is not that availability of a remedy remedy remedy under section 397 of the said Code under section 397 of the said Code under section 397 of the said Code affects affects affects or takes away the power of this Court or takes away the power of this Court or takes away the power of this Court under under under section 482 of the Code. What is held by section 482 of the Code. What is held by section 482 of the Code. What is held by this this this Court in the case of V.K.Jain and others Court in the case of V.K.Jain and others Court in the case of V.K.Jain and others (supra) (supra) (supra) is that if a remedy under section 397 is is that if a remedy under section 397 is is that if a remedy under section 397 is available available available and is not availed of, normally, a and is not availed of, normally, a and is not availed of, normally, a Petition Petition Petition under Article 227 of the Constitution under Article 227 of the Constitution under Article 227 of the Constitution of of of India or an Application under section 482 India or an Application under section 482 India or an Application under section 482 will will will not be entertained. In every case, where not be entertained. In every case, where not be entertained. In every case, where the the the Applicant can obtain equally efficacious Applicant can obtain equally efficacious Applicant can obtain equally efficacious relief relief relief by taking recourse to a Revision under by taking recourse to a Revision under by taking recourse to a Revision under section section section 397 of the said Code, this Court will 397 of the said Code, this Court will 397 of the said Code, this Court will : 6 : not not not entertain an Application under section 397 entertain an Application under section 397 entertain an Application under section 397 of of of the said Code, this Court will not entertain the said Code, this Court will not entertain the said Code, this Court will not entertain an an an Application under section 482 of the said Application under section 482 of the said Application under section 482 of the said Code Code Code as inherent power has to be exercised very as inherent power has to be exercised very as inherent power has to be exercised very sparingly. sparingly. sparingly. Therefore, there is no merit in the submission of Shri Jha that the decision of the learned single Judge in the case of V.K.Jain (supra) is contrary to the law laid down by the Apex Court. 12. The The The Apex Court has time and again held Apex Court has time and again held Apex Court has time and again held that that that the inherent jurisdiction though wide has the inherent jurisdiction though wide has the inherent jurisdiction though wide has to to to be exercised very sparingly, carefully and be exercised very sparingly, carefully and be exercised very sparingly, carefully and with with with caution and only when such exercise is caution and only when such exercise is caution and only when such exercise is justified justified justified by the tests specifically laid down in by the tests specifically laid down in by the tests specifically laid down in section section section 482. In the present case when the 482. In the present case when the 482. In the present case when the Applicants Applicants Applicants can avail of remedy of filing a can avail of remedy of filing a can avail of remedy of filing a Revision Revision Revision Application before the Sessions Court Application before the Sessions Court Application before the Sessions Court for for for challenging the order issuing process, the challenging the order issuing process, the challenging the order issuing process, the jurisdiction jurisdiction jurisdiction under section 482 which is to be under section 482 which is to be under section 482 which is to be exercised exercised exercised sparingly cannot be invoked. Even if sparingly cannot be invoked. Even if sparingly cannot be invoked. Even if the the the Applicants fail in the Revision Application, Applicants fail in the Revision Application, Applicants fail in the Revision Application, their their their remedy of approaching this Court is not remedy of approaching this Court is not remedy of approaching this Court is not taken taken taken away provided the case is covered by tests away provided the case is covered by tests away provided the case is covered by tests : 7 : specifically specifically specifically laid down in section 482 of the laid down in section 482 of the laid down in section 482 of the said said said Code. Code. Code. In view of the law laid down by the Apex Court and in particular in the case of Navjot Sandhu (supra), I am not inclined to entertain these Applications as the Applicants can avail of a remedy under section 397 of the said Code." (Emphasis Added) . This Court held that it was not necessary to reconsider the earlier decision in the case of V.K.Jain (Supra). 5. Now turning to the decision of the learned single Judge in the case of Vishwanath Patil (supra), it must be stated here that the learned single Judge has considered the decision of this Court in the case of V.K.Jain (supra). It will be necessary to refer to paragraph 10 of the decision of the learned single Judge where he has referred to the case of V.K.Jain (supra). The paragraph 10 reads thus :- . "It is difficult to curtail this remedy merely because there is a revisional remedy available. The alternate remedy is no bar to invoke power : 8 : under Article 227. What is required as to see the facts and circumstances of the case while entertaining such petition under Article 227 of the Constitution and/or under section 482 of Criminal Procedure Code. The view therefore, as taken in both the cases V.K. Jain and Saket Gore, no way expressed total bar. If no case is made out by the petitioner or the party to invoke the inherent power as contemplated under section 482 of Criminal Procedure Code and/or the discretionary or the supervisory power under Article 227 of the Constitution of India they may approach to the revisional Court, against the order of issuance of process." 6. After holding as aforesaid, the learned single Judge in paragraph 11 held that considering what is observed by the learned single Judge in the case of V.K.Jain (supra), it would be appropriate for the parties to file a revision application against an order issuing process. However, by holding that there is no bar to file a petition under section 482 of the said Code, the learned Judge entertained the petition. 7. In view of what is held by this Court in the : 9 : case of Bharat Dahanukar (Supra), it is obvious that the jurisdiction of this Court to exercise powers under section 482 of the said Code is not affected merely because a remedy under section 397 of the said Code is available. However, the Apex Court has repeatedly held that the jurisdiction under section 482 of the said Code has to be exercised sparingly and in very rare cases. 8. The challenge in these petitions is mainly on the ground that on plain reading of the averments made in the complaint, no offence is made out against the petitioners. Therefore, the petitioners can always adopt a remedy of filing a revision application in the Sessions Court. Hence, these petitions invoking section 482 of the Code need not be entertained and the same are disposed of by keeping the remedy of the petitioners open. 9. The learned counsel appearing for the petitioners prays that the proceedings of the trial may be stayed for a reasonable time to enable the petitioners to adopt appropriate remedy. In view of the said request, the proceedings of the trial will remain stayed for a period of 6 weeks from today. : 10 : (A.S.Oka,J.)