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2019 (8) TMI 476

..... of Cr.P.C. - HELD THAT:- The Supreme Court in the case of ADALAT PRASAD VERSUS ROOPLAL JINDAL & OTHERS [2004 (8) TMI 647 - SUPREME COURT] held that, the Court, who has issued process, has no power of review its order of issuance of process, and hence order of issuing process cannot be recalled. In the present case, petitioner preferred an application for recalling the order of issuance of process passed by the learned Magistrate, which was not tenable in view of law laid down in the case of Adalat Prasad. Hence, the application preferred by the petitioner was not maintainable. The issue of maintainability of the application filed by the petitioner under Section 204 of the Cr.P.C. goes to the root of the matter, in as much as, the applic .....

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..... the said complaint it is stated that, the petitioners are the partners of Arihant Trading Company, and the Respondent No. 1 used to trade oil with the said firm. It is further stated that the partners of the said firm have assured payment for the bulk oil tankers by the Respondent No.1 to the said firm, and the said firm is deemed to be a party to the complaint. It is further stated that, from time to time Respondent No. 1 has supplied to the accused i.e. the Petitioners, and Respondent Nos. 2 and 3 oil tankers and, as on 30.09.2002 the account of the accused in the complaint shows debit balance of ₹ 35,26,997/­ and that the accused had failed and neglected to pay the price of oil supplied to the accused along with interest at th .....

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..... y handed over by accused no. 4 i.e. the Petitioner No. 2, to the Respondent No. 1 and provided the particulars of the accused nos. 1 and 2 with the request to get the amount collected to banker. It is further alleged that, the complainant agreed to give credit of the said cheques amounts to the Petitioners, and amount from their alleged dues of ₹ 35,26,997/­. On these allegations, the Respondent No. 1 has contended that, the accused in the complaint had jointly and severally committed an offence punishable under Chapter XVII and Section 138 of the Negotiable Instruments Act. It is also stated that, accused have in this manner joined hands and cheated the complainant and committed on offence punishable under provisions of Section 4 .....

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..... alleged cheques mentioned in the complaint were not issued to discharge any legal dues and liability of the Petitioners. It is submitted that, no any tripartite agreement between the complainant, the Petitioners and person issuing the cheques was entered into. Learned counsel also invites attention of this Court to the grounds taken in the Petition and submits that, the Petitioners have not signed the cheques and therefore, order issuing process deserves to be set aside. It is submitted that the Supreme Court in the case of Jugesh Sehgal Vs. Shamsher Singh Gogi reported in (2009) 14 SCC 683 has taken a view that, to constitute an offence under Section 138 of the Negotiable Instruments Act, 1881 following ingredients are required to be fulfi .....

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..... Respondent Nos 1 to 3. Learned APP relying upon the reasons assigned by the Courts below submits that the petition may be rejected. 12. Heard learned counsel appearing for the Petitioners and learned APP appearing for the State at length, with their able assistance perused the pleadings and grounds taken in the Petition and annexures thereto. It appears that, the present Petitioners filed application under Section 204 of Cr.P.C. The Supreme Court in the case of Adalat Prasad versus Rooplal Jindal and others (2004) 7 SCC 338 held that, the Court, who has issued process, has no power of review its order of issuance of process, and hence order of issuing process cannot be recalled. In the present case, petitioner preferred an application for .....

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