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 WRIT PETITION NO.2272 OF 2005 Kotak Mahindra Bank Ltd. (formerly Kotak Mahindra Finance Ltd.) .. Petitioner Vs. M/s.Ravlon Pen Company Ltd & Ors. .. Respondents Mr.Tejas H.Bhatt for the petitioner. Mr.D.R.More, A.P.P for the State. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 12th August 2008. : 12th August 2008. : 12th August 2008. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: . The submissions of the learned counsel appearing for the petitioner were heard on the last date. None appears for the 1st to 6th respondents. 2. With a view to appreciate the submissions made by the learned counsel, it will be necessary to refer to the facts of the case in brief. The petitioner is the original complainant in a complaint under section 138 of the Negotiable Instruments Act, 1881. On the said complaint, the process was issued by the learned Magistrate. An application was made by the accused praying for recalling the order issuing process. By order dated 21st March 2003 the learned Magistrate allowed the application and dropped the proceedings against all the accused. The learned Judge observed : 2 : 2 : 2 : that the accused have been discharged from the charges levelled against them. A revision application was preferred by the petitioner for challenging the said order. The said revision application has been dismissed. While dismissing the revision application, the learned Additional Sessions Judge observed that prior to the presentation of the cheques which are subject matter of the complaint an order was passed under section 22-A of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as the "SICA") and the 1st respondent was restrained from alienating his assets. 2. Apart from other submissions the learned counsel appearing for the petitioner submitted that the learned Magistrate had no power to recall the order issuing process and therefore only on this ground the order passed by the learned Magistrate on 21st March 2003 is ex-facie illegal. He submitted that even the finding recorded by the learned Additional Sessions Judge on the basis of section 22-A of the SICA is erroneous. None appeared for the respondents though notice is served. 3. In the case of Adalat Prasad Vs. Rooplal Jindal & others (2004(4) Mh.L.J. 274), the Apex Court held that an application made before learned Magistrate for recall of order issuing process is not maintainable and : 3 : 3 : 3 : the learned Magistrate has no power to recall the order and to drop the proceedings. The view taken by the Apex Court has been reaffirmed in its subsequent judgment in the case of Subramanium Sethuraman Vs. State of Maharashtra & another (2005(1) Mh.L.J. 626). 4. In the light of the well settled law, it will be necessary to refer to the order dated 21st March 2003 passed by the learned Magistrate. The learned Magistrate held that the prosecution was not at all maintainable against all the accused and therefore the proceedings will have to be dropped. After having issued process, the order of the learned Magistrate dropping the proceedings amounts to recalling or interfering with the order issuing process. Moreover, in view of section 143 of the Negotiable Instruments Act, 1881, there was no occasion for the learned Magistrate to consider prayer for discharge and therefore order of discharge could not have been passed. 5. All this has been completely overlooked by the learned Additional Sessions Judge. 6. Hence, I pass the following order: (i) The order dated 21st March 2003 passed by the learned trial Judge is quashed and set aside : 4 : 4 : 4 : and consequently the impugned order of the learned Additional Sessions Judge is quashed and set aside. (ii) The petition is allowed in terms of prayer clause (b). (iii) It is however made clear that all contentions of the parties including the contentions based on section 22-A of SICA are expressly kept open. (A.S.Oka, J)