HIRALAL AMBALA JAIN Vs. INDAGE VINTNERS LTD

JUDGEMENT

(1.) This writ petition takes an exception to the judgment and order passed by the Additional Sessions Judge, Pune in Criminal Revision Application No.824 of 2013. By the impugned order dated 16 th July, 2014, he has dismissed the revision and thereby confirmed the order passed by Judicial Magistrate First Class below Exh.76 in S.C.C. NO.52972/2009 dated 2nd January, 2013, refusing to add the name of respondent company as accused in the prosecution case.

(2.) Facts of the writ petition lie in a narrow compass and are to the effect that the petitioner had filed criminal proceeding under Section 138 of the Negotiable Instruments Act against respondent No.1 company and its Directors. The process was issued against the company and its Directors. As the company went into liquidation and winding up order was passed on 19th March, 2010, application was moved before the trial Court at Exh.16 seeking to withdraw prosecution against company; mainly relying on the law then prevailing as laid down in Anil Hada vs Indian Acrylic Ltd. A.I.R.2000 S.C.145, according to which joining of the company was not a sinequa non for proceeding under Section 138 of the Negotiable Instruments Act. The trial Court granted permission to withdraw the prosecution against the company. Later on legal position changed and therefore, another application vide Exh.76 was filed by the petitioner before trial Court to retain the name of accused No.1 on record, as it was earlier.

(3.) The trial Court, however, rejected the said application on the ground that withdrawal of the complaint against company has an effect of acquittal and therefore, there would be bar under Section 300 of Code of Criminal Procedure if name of company is allowed to be brought on record again as accused in the proceeding. This order of the trial Court, was confirmed by the Sessions Court also in its revisional jurisdiction by holding that there is no such provision to rejoin the accused once the case is withdrawn against him as it has the effectof acquittal and thus attracts the bar of double jeopardy under Section 300 of Code of Criminal Procedure. It was further observed by the trial Court and the Sessions Court that only remedy available to the petitioner was to move High Court in writ jurisdiction. Accordingly, the petitioner has preferred this Writ petition.