High Court
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corrected-1-CRIWP1196-241 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD1 CRIMINAL WRIT PETITION NO. 1196 OF 2024Ambaji Trading Company Through Its Partner ChitrasenYashwantrao Patil And OthersVERSUSJalgaon District Central Co Op Bank Ltd Jalgaon Through GeneralManagar Pralahad Bhaulal Sapkale......Mr. Jay Chavan, Advocate h/f Mr. D.B. Thoke, Advocate forPetitioners...... [CORAM : Y. G. KHOBRAGADE, J.] DATE : 02nd DECEMBER, 2024 ORDER :1.Heard at length the learned counsel appearing forpetitioners. 2.By the present petition, under Article 226 and 227 of theConstitution of India, read with section 482 of the Code ofCriminal Procedure, the petitioners/original accused takesexception to order dated 04.10.2019, whereby the learned JudicialMagistrate, First Class, Court No.2, Jalgaon issued process againstthe petitioners/original accused 1 to 15 for the offence punishableunder section 138 of the Negotiable Instruments Act.1 of 12 corrected-1-CRIWP1196-242 3.On face of the record, prima facie it appears that, theRespondent/complainant filed a complaint S.C.C. No. 1658 of2019 and alleged that, the present petitioner no.1 is a Registeredpartnership firm/Financial Institution. The petitioners No.2 to14/original accused are partners of the petitioner no.1/Firm aswell as they are responsible for all transactions of the accused no.1/ Firm. 4.The Petitioner firm participated in the E-Auctionconducted by the Respondent/Ori. Complainant, who was securedcreditor of Belganga Sahakari Sakhar Karkhana Limited,Chalisgaon. However, said Sahakari Sakhar Karkhana fail to repaythe loan. Therefore, the Respondent/ori. Complainant wasinitiated the proceeding under the Securitisation andReconstruction of Financial Assets and Enforcement of SecurityInterest Act, 2002. After the Order passed by the competentauthority, the mortgage property was put for E-Auction forrecovery of outstanding loan. 5.It is a matter of record that, the accused No.1participated in E-Auction and purchased the mortgaged property ofBelganaga Sahakari Sakhar Karkhana in higest bid of Rs.2 of 12 corrected-1-CRIWP1196-243 39,22,00,001/- (Thirty Nine Crore Twenty Two Lakhs and One).However, after payment of entire amount of auction bid, theRespondent/Complainant intimated to petitioner firm aboutpendency of W.P. No. 2969/2016 before this Court wherein auctioninitiated by the Provident Fund Authority for issuance of recoverycertificate by the Provident Fund Department.6.Needless to say that, when the secured creditor bankinitiated the recovery proceedings under the SARESI Act, theProvident Fund Authorities filed the Civil Application No. 268 of2017 in W. P. 2969/2016 and was opposed the E-Auction of themortgage property. It is not in dispute that, this Court passed anorder in C.A. No. 268 of 2017 in W. P. 2969/2016 and directed thepetitioner no. 1 Firm to deposit amount of Rs. 11,00,00,000/- (Rs.Eleven Crore) out of sale proceed with the P.F. Department.However, said order was never disclosed the petitioner no. 1 firm.But after getting the knowledge, the Respondent/ComplainantBank and the Petitioner No. 1 to 15 arrived at the settlement on06.01.2018 in said writ petition. 7.As per the terms and conditions of the said settlement,the present petitioners 1 to 15 have accepted liability for payment3 of 12 corrected-1-CRIWP1196-244 of Rs. 11 Crores. Not only this but the Petitioners 1 to 15 have alsofurnished undertaking before the Central Government IndustrialTribunal, Nagpur, (C. G. I. T., Nagpur) to deposit the said amountwithin 4 weeks from the date of judgment. 8.It further appears that, in pursuance of clause ii, ivand v of the terms of compromise, the petitioners/accused personsissued a cheque No.130961 of Rs.11 Crores, drawn on JalgaonJanta Sahakari Bank Ltd. Jalgaon, Branch Chalisgaon in favour ofthe Respondent/Complainant toward payment of dues of Providentfund in pursuance of order passed in appeal No.244/2017 by theIndustrial Tribunal, Nagpur. However, said cheque returned unpaidon account of insufficient balance and referred to drawer. The saidcheque was returned to the respondent/complainant on22.01.2019. The petitioners/accused persons are duly served withmandatory notice but they fail to comply with it. Therefore, therespondent/complainant has instituted the complaint bearing SCCNo.1658/2019 and prayed for award of appropriate sentenceunder Sec. 138 of N. I Act. 9.After the necessary compliance, on 04.10.2019, thelearned Trial Court passed an order and issued the process against4 of 12
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corrected-1-CRIWP1196-245 the present petitioners/accused persons for the offence punishableunder section 138 of the Negotiable Instruments Act. 10.Learned Counsel for the petitioner canvas in vehemencethat the cheque was to be deposited after the decision of appealbefore the Central Government Industrial Tribunal, Nagpur, and if,the appeal is not decided within the period of one year, then also,the cheque was to be deposited. However, this eventuality hasoccurred because the appeal came to be rejected twicely on thepoint of locus but said appeal had not been decided on merit. Thecheque was issued as per the compromise terms in favour ofrespondent/Bank with anticipation that the said appeal wouldadjudicate and claim of provident fund amount would be finallydecided. Therefore, offence u/s 138 of NI Act does not constituteas against the petitioners/accused. 11.Needless to say that to constitute the offence undersection 138 of the Negotiable Instruments Act, it is only require tosee that the instrument/cheque was issued for discharging of legalliability but said instrument (Cheque) has been dishonoured on thereasons that provided u/s 138 of the N.I. Act, including insufficientbalance, stoppage of payment or any other reasons. So also,the5 of 12 corrected-1-CRIWP1196-246 mandatory notice under section 138 of the Negotiable InstrumentAct has been issued but even after service of said notice, the noticefail to comply with the mandatory notice. 12.Needles to say that the petitioners have not denied aboutservice of mandatory notice u/s 138 of the Act. In the case in hand,the petitioners have not denied fact about issuance of cheque inquestion, which has been dishonored. According to therespondent/complainant, petitioner no.1 issued a cheque on it’saccount. The petitioners No.2 to 14 are the partners of the saidfirm, who are responsible for day to day transaction of thePetitioner/Accused No. 1 Firm. It is an admitted fact that, saidcheque was presented for encashment on 21.09.2019, but it wasreturned unpaid with an endorsement “due to insufficient balance”on 22.01.2019. The respondent/complainant issued a mandatorynotice on 08.02.2019, however, the said notice not been complied.Therefore, the learned Trial Court, on satisfaction and applicationof mind, passed the impugned order and issued process against thepetitioners/accused persons. Therefore, impugned order does notappear to be illegal, bad in law.6 of 12 corrected-1-CRIWP1196-247 13.It would be worthwhile to mention that, at the time ofissuing process under Sec. 204 of Cr. P. C., the learned Magistraterequires to satisfy about existence of necessary ingredients toconstitute an offence u/s 138 of the N I Act. The defence of thepetitioners/accused are not required to consider.14.As per the case details generated from the website of thisCourt it appears that, the present petitioners have filed the presentpetition on 04.07.2024 for challenging the order dated 04.10.2019but after lapse of 4 years 11 months 25 days, the petitioners havegot listed the matter first time, and it does not appear that thepetitioners are vigilant about their right. 15.Irrespective of above facts, the petitioners have availedthe remedy under Articles 226, 227 of the Constitution of Indiar/w Sec. 482 of Cr. P. C., after lapse of 4 years 11 months 25 daysand prayed for quashing of order of issuance of process passed bythe learned Magistrate on 04the October, 2019 in SCC No. 1658.16.It is trite settled principle of law that, order of issuanceof process is not interlocutory order, therefore, remedy undersection 397 of the Code of Criminal Procedure is available.However, the petitioners have approached this Court under Articles7 of 12 corrected-1-CRIWP1196-248 226, 227 of the Constitution of India read with section 482 of theCode of Criminal Procedure, seeking to quash the order of issuanceof process after lapse of 4 years 11 months 25 days. 17.In Mrinmoy Maity Vs. Chhanda Koley, AIR 2024 SC2717, the Hon’ble Supreme Court in paragraph Nos. 9 to 11 heldthus:“9. Having heard rival contentions raised and on perusal ofthe facts obtained in the present case, we are of theconsidered view that writ Petitioner ought to have been non-suited or in other words writ petition ought to have beendismissed on the ground of delay and latches itself. Anapplicant who approaches the court belatedly or in otherwords sleeps over his rights for a considerable period of time,wakes up from his deep slumber ought not to be granted theextraordinary relief by the writ courts. This Court time andagain has held that delay defeats equity. Delay or latches isone of the factors which should be born in mind by the HighCourt while exercising discretionary powers Under Article226 of the Constitution of India. In a given case, the HighCourt may refuse to invoke its extraordinary powers if laxityon the part of the applicant to assert his right has allowed thecause of action to drift away and attempts are madesubsequently to rekindle the lapsed cause of action. 10. The discretion to be exercised would be with care andcaution. If the delay which has occasioned in approaching thewrit court is explained which would appeal to the conscienceof the court, in such circumstances it cannot be gainsaid bythe contesting party that for all times to come the delay is not8 of 12 corrected-1-CRIWP1196-249 to be condoned. There may be myriad circumstances whichgives rise to the invoking of the extraordinary jurisdictionand it all depends on facts and circumstances of each case,same cannot be described in a straight jacket formula withmathematical precision. The ultimate discretion to beexercised by the writ court depends upon the facts that it hasto travel or the terrain in which the facts have travelled. 11. For filing of a writ petition, there is no doubt that nofixed period of limitation is prescribed. However, when theextraordinary jurisdiction of the writ court is invoked, it hasto be seen as to whether within a reasonable time same hasbeen invoked and even submitting of memorials would notrevive the dead cause of action or resurrect the cause ofaction which has had a natural death. In such circumstanceson the ground of delay and latches alone, the appeal ought tobe dismissed or the applicant ought to be non-suited. If it isfound that the writ Petitioner is guilty of delay and latches,the High Court ought to dismiss the petition on that soleground itself, in as much as the writ courts are not to indulgein permitting such indolent litigant to take advantage of hisown wrong. It is true that there cannot be any waiver offundamental right but while exercising discretionaryjurisdiction Under Article 226, the High Court will have tonecessarily take into consideration the delay and latches onthe part of the applicant in approaching a writ court. ThisCourt in the case of Tridip Kumar Dingal and Ors. v. State ofW.B and Ors., (2009) 1 SCC 768 has held to the followingeffect:56. We are unable to uphold the contention. It is nodoubt true that there can be no waiver offundamental right. But while exercising discretionaryjurisdiction Under Articles 32, 226, 227 or 136 of theConstitution, this Court takes into account certain9 of 12 corrected-1-CRIWP1196-2410 factors and one of such considerations is delay andlaches on the part of the applicant in approaching awrit court. It is well settled that power to issue a writis discretionary. One of the grounds for refusingreliefs Under Article 32 or 226 of the Constitution isthat the Petitioner is guilty of delay and laches.57 . If the Petitioner wants to invoke jurisdiction of awrit court, he should come to the Court at theearliest reasonably possible opportunity. Inordinatedelay in making the motion for a writ will indeed bea good ground for refusing to exercise suchdiscretionary jurisdiction. The underlying object ofthis principle is not to encourage agitation of staleclaims and exhume matters which have already beendisposed of or settled or where the rights of thirdparties have accrued in the meantime (vide State ofM.P. v. Bhailal Bhai [AIR 1964 SC 1006: (1964) 6SCR 261], Moon Mills Ltd. v. Industrial Court [AIR1967 SC 1450] and Bhoop Singh v. Union of India[SCC 136: (1992)]. This principle applies even incase of an infringement of fundamental right (videTilokchand Motichand v. H.B. Munshi [(1969) 1 SCC110], Durga Prashad v. Chief Controller of Imports &Exports [(1969) 1 SCC 185] and Rabindranath Bosev. Union of India [(1970) 1 SCC 84]).58. There is no upper limit and there is no lowerlimit as to when a person can approach a court. Thequestion is one of discretion and has to be decidedon the basis of facts before the court depending onand varying from case to case. It will depend uponwhat the breach of fundamental right and theremedy claimed are and when and how the delayarose.18.No doubt in cases of Prabhu Chawala Vs. State ofRajasthan, (2016) 16 SCC 30, Vijay and another Vs. State ofMaharashtra, (2017) 13 SCC 317, Mohit Vs. State of U.P. (2013) 7SCC 789 and Dhariwal Tobacco Products Ltd. Vs. State of10 of 12 corrected-1-CRIWP1196-2411 Maharashtra (2009) 2 SCC 370, the Hon’ble Apex Court held that,section 397 of the Code of Criminal Procedure is attracted againstall orders than interlocutory, a contrary view would limit theavailability of inherent powers under section 482 of the Code ofCriminal Procedure only to petty interlocutory orders. A situationwhich is wholly unwarranted and undesirable. The three JudgesBench has confirmed the law that laid down by this Court inDhariwal Tobacco Products Ltd. (cited supra). Therefore, mereavailability of alternative remedy cannot be a ground to disentitlethe relief under section 482 of the Code of Criminal Procedure.19.In case on hand, it appears that, the petitioners have notbrought any exceptional circumstances on record, which has beenobserved by the Hon’ble Supreme Court in Dhariwal TobaccoProducts Ltd. (cited supra). It is a well settled principle of law that,the order of issuance of process does not come within the ambit ofinterlocutory order and revision against the order of issuance ofprocess is maintainable as per the ratio laid down in case ofRajendra Kumar Sitaram Pande & Ors vs Uttam & Another, AIR1999 SC 1028. 11 of 12 corrected-1-CRIWP1196-2412 20.In view of the above discussion, I do not find that theimpugned orders is perverse, illegal or bad in law and no groundsare set out to interfere with the order of issuance of process passedby the learned Trial Court. Accordingly, the Criminal Writ Petitionis dismissed. [ Y. G. KHOBRAGADE ] JUDGE S. P. Rane12 of 12