DHIREN C.TOLANI Vs. SHAILESH RAMNIK MEHTA

JUDGEMENT

(1.) SUBMISSIONS of the learned Counsel appearing for the parties were heard on the last date.

(2.) CHALLENGE in this petition under Article 227 of the Constitution of India is to the Judgment and Order dated 16th September 2002 passed by the Chief Judicial Magistrate, Thane. The Petitioner is the complainant in a private complaint under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the said Act of 1881"). On a complaint filed by the Petitioner process was issued by the learned Magistrate. The Respondents No.1 preferred an application at Exh.46 for recalling the order issuing process. The said application came to be rejected on 18th January 2002. A second application at Exh.53 was made by the Respondent No.1 for recalling the order issuing process. By the impugned order, the learned Chief Judicial Magistrate directed that the order issuing process as against the Accused No.3 i.e. Respondent No.1 herein stands recalled.

(3.) SHRI Subhash Jha the learned Counsel appearing for the Respondent No.1 placed reliance on a decision of this Court in Criminal Writ Petition No.444 of 2005 dated 23rd August 2005 (S.P. Capital Finance Ltd. vs. State of Maharashtra and others). He submitted that the learned Single Judge has held that the decision of the Apex Court in the case of Adalat Prasad does not indicate directly or indirectly that the decision would operate retrospectively and hence the decision cannot be made applicable to the cases which were decided before the decision in the case of Adalat Prasad. He submitted that the decision of the Apex Court in the case of Adalat Prasad will not apply retrospectively and it will have only a prospective operation. He submitted that on the basis of the decision of the Apex Court in the case of Adalat Prasad, the orders which were passed earlier cannot be reopened. He placed reliance on the decision of the Apex Court reported in 1999 (3) S.C.C. page 362 (Baburam vs. C.C.Jacob and others).