VIJAYSINH M BHATIA Vs. HAREN THANAWALLA

JUDGEMENT

(1.) HEARD Mrs. Rao the learned counsel for the petitioner and Mr. Brijesh Upadhyay the learned counsel for the respondent No. 1. The learned APP appears for the State.

(2.) THIS is a writ petition filed under Article 227 of the Constitution invoking the inherent powers of this Court under section 482 of cr. P. C. so as to quash and set aside the process issued against the petitioner in C. C. No. 3850/8/2002 by the learned additional Chief Metropolitan Magistrate, 23rd Court at Esplanade, Mumbai on 30/3/1999.

(3.) THE present respondent No. 1 originally filed criminal Case No. 956/8/1999 before the Metropolitan Magistrate at Mumbai on 4/3/1999 under section 138 of the negotiable Instruments Act, 1881 (for short the Act) and verification was done under section 200 of Cr. P. C. on the very same day. Issue process order was passed on 30/3/1999 under section 138 of the Act. On or about 2/3/2002 i. e. after three years from the date of the order of issuance of process, the petitioner filed an application before the learned Metropolitan Magistrate for recall of process on the ground that he had submitted his resignation from the post of Director of the accused No. 1-company and the said resignation was accepted on the same date. The Company had forwarded form 32 to the Registrar of Companies on 27/1/1999 intimating his resignation. After the Apex Court in its judgment in the case of (Adalat Prasad Vs. Rooplal Jindal)2004 (2) Som. C. R. (Cri.) (S. C.)857 : 2004 dgis 549 : 2004 (4) Mh. L. J. 274 : (2004)7 s. C. C. 338 held that the trial Court had no powers to recall the process issued by it, the petitioner approached this Court in criminal Writ Petition No. 1933 of 2004 and prayed for quashing of the proceedings in the pending complaint which was subsequently re-registered as C. C. No. 3850/s/2002. The petition was admitted on 21/10/2004. However, in view of the decision of this Court in the case of (V. K. Jain Vs. Pratap V. Padode) 2005 (2)Bom. C. R. (Cri.) 738 : 2005 (3) Mh. L. J. 748 the petition was allowed to be withdrawn on 31/7/2006 with liberty to the petitioner to approach the Sessions Court by filing a revision application under section 397 of cr. P. C. The petitioner filed Criminal Revision application No. 756 of 2007 and it was rejected on 13/7/2007 and, therefore, this petition in the second round.