SHASHIKANT SOMNATH BHAIBHANG Vs. SANDESH GURUSIDDH SHAHIR

JUDGEMENT

(1.) Rule. Rule made returnable forthwith with the consent of parties. Respondent waives service.

(2.) The respondent has initiated prosecution against the petitioner in respect of offence punishable under section 138 of Negotiable Instrument Act, 1881. (Hereinafter referred to "said Act") , on the premises that the cheque issued towards the satisfaction of subsisting liability was dishonoured and inspite of the notice the Respondent did not make repayment within stipulated period of 15 days. After recording verification of the complainant the learned Magistrate issued process against the petitioner in respect of the offence under section 138 of the said Act. After his appearance the petitioner filed an application for recall of the process. Application Exh. 21 came to be rejected by the trial Court by order dated 16th January, 2006 on the ground that the Court has no powers to recall the process.

(3.) The present petition is filed for quashing the impugned order. Previously in pursuance of the judgment of the Apex Court in the case of (K. M. Mathew v. State of Kerala andanr. ) , (1992) 1 S. C. C. 217, inherent powers used to be exercised by the trial court for recalling the process. However, in the case of (Adalat Prasad v. Rooplal Jindal and ors. ) , 2004 (2) Bom. C. R. (Cri. ) (S. C. ) 857 : 2004 (4) Mh. L. J. 274, the view taken in km. Mathew's case came to be overruled and it is held that the trial Court doesn't have inherent powers. Therefore, the only remedy in the cases where process is issued is to move the High Court for quashing of the proceedings.