TMI Blog2019 (8) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... ss. The said delay has not been explained by the petitioner - Thus, the application filed by the petitioner for recalling the order of issuance of process was not maintainable and, therefore, further proceedings, arising out of the said order, initiated by the petitioner are rightly held to be not maintainable by the Sessions Court. The learned Magistrate has rightly concluded that the order of issuance of process cannot be recalled. Secondly, the Sessions Court has rightly concluded that even in absence of firm/company as a party to the complaint, keeping in averments made in the complaint, the petitioner can be prosecuted. Admittedly, there was delay of more than 9 years in filing the application for recalling the order of issuance of process. Petition dismissed. - WRIT PETITION NO.209 OF 2004 - - - Dated:- 31-7-2019 - S.S. SHINDE J. Mr. Pranjal Khatavkar I/b. Mr. Shriram S. Kulkarni for the Petitioner. Ms. Gauri Velankar I/b. Mr. M.V.Limaye for Respondent No.1. Mrs. G.P. Mulekar, APP for Respondent No.2-State. ... JUDGMENT 1. This Petition takes an exception to the judgment and order dated 12.12.2003 passed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble on the ground that the petitioner has not challenged the order of issuance of process dated 28.04.1993. 5. It is the further case of the petitioner that on 31.10.2002, the petitioner preferred an application below exhibit 51 and brought to the notice of the learned Judge that no offence with regard to any of the cheque can be averred against him under Section 138 of the N.I.Act and the Court cannot take cognizance of the same. The petitioner has further contended in the said application that cheques in question neither negotiated by the partnership of M/s. Jaihind Construction Corporation nor by the petitioner. No notice is issued to M/s. Jaihind Construction Corporation and there are no allegations against the said firm in the complaint. Similarly, M/s.Jaihind Construction is not arrayed as an accused in the complaint. Therefore, mandatory provisions of Section 141 of the N.I.Act are neither pleaded, averred and complied with and, therefore, in absence of the said compliance of the mandatory provisions, no liability of criminal proceedings can be imposed upon the petitioner. Similarly, there is no averment in the verification as well as in the complaint that the chequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused can show that the company has not committed the offence, though such company is not made an accused, and hence the prosecuted accused is not liable to be punished..... . 8. He further submits that on more than one occasion, it has been held by the Hon'ble Supreme Court that an averment of a person being incharge, and responsible to the company in conduct of its offence, i.e., averment in the nature of verbatim of reproduction of Section 141 of the N.I.Act will not suffice. An averment must state that a person is vicariously liable for the offence, both was in-charge and was responsible for the conduct for the business of the company. The requirement must be laid down therein and must be laid down conjointly and not disjunctively. Learned Counsel further submits that, Section 141 of the N.I.Act contemplates a constructive liability. It postulates that a person, incharge of and responsible to the company for the conduct of the business of company, shall also be deemed to be guilty of the offence. In case of the offence by company to bring its Directors within the scope of Section 138 of the N.I.Act, it shall be necessary to allege that they were incharge and respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner preferred an application for recalling the order of issuance of process passed by the learned Magistrate, which was not tenable in view of Adalat Prasad (supra). Hence, the application preferred by the petitioner below exhibit 51 is not maintainable. 11. She further submits that the application preferred by the petitioner also suffers from delay and latches as order of issuance of process was passed on 28.04.1993 by the learned Magistrate, and plea was also recorded on 13.08.2001 and the petitioner preferred an application for recalling the order of issuance of process on 31.10.2002 i.e., after 9 years of filing of original complaint. She further submits that on this ground itself the application preferred by the petitioner could not have been entertained, and has been rightly dismissed by the trial Court and said order is rightly confirmed by revisional Court. She further submits that the Hon'ble Supreme Court has held that in Balikchand Gyanchand and Co. v/s. A.Chinnaswami 1993 (3) ALL MR 413 that, even if notice is issued to managing director of company, who has signed the cheques, the complaint cannot be quashed on the ground that notice was not addressed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel submits that the Writ Petition deserves to be dismissed. 14. Heard learned Counsel appearing for respective parties at length. 15. With their able assistance, I have perused the pleadings and grounds taken in the Petition and annexures thereto, and also written notes of arguments. It appears that the learned Magistrate passed the order of issuance of process against the petitioner on 28.04.1993. Admittedly, the said order was never challenged by the petitioner. However, the petitioner challenged the order of recording the plea passed by the learned Magistrate. However, an application preferred by the petitioner challenging the order of recording the plea was rejected by the learned Magistrate. It appears that being aggrieved, the petitioner filed revision before the Sessions Court, Pune. However, it has been rightly observed by the Sessions Court that revision was not maintainable, and accordingly the said revision was rejected. It appears that in the year 2002, the petitioner filed an application for recalling the order of issuance of process passed by the learned Magistrate on 28.04.1993. Therefore, there was delay of more than 9 years for filing applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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