P. Suryanarayana Vs. State of A.P. and anr. - Court Judgment

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			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
			'authreffered' => '',
			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
			'caseanalysis' => null,
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			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2003-03-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
		'authreffered' => '',
		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'P.S. Sastry, Adv.',
		'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2003-03-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.C. Bhanu, J.',
		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
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			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
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			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2003-03-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
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			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
		'authreffered' => '',
		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
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		'counselplain' => 'P.S. Sastry, Adv.',
		'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
		'court' => 'Andhra Pradesh',
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		'deposition' => 'Petition dismissed',
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		'judge' => 'K.C. Bhanu, J.',
		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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criminal - dishonour of cheque - sections 362 and 482 of criminal procedure code, 1973 and sections 138 and 141 of negotiable instruments act, 1881 - petition filed to quash proceedings initiated under section 138 - whether matter can be referred to division bench in view of conflicting decision of court on same point - section 362 of criminal procedure code restricts criminal court to review or alter its judgment - under guise of section 482 court cannot review alter or recall its order because of express prohibition in section 362 - matter not referred to division bench - petition liable to be dismissed. - - 4. under section 138 of the negotiable instruments act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that section. clearly.....

Notice (8): Undefined variable: kword [APP/View/Case/amp.ctp, line 123]
Code Context
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			'id' => '439244',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
			'authreffered' => '',
			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
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			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2003-03-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
		'authreffered' => '',
		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
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		'counselplain' => 'P.S. Sastry, Adv.',
		'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2003-03-10',
		'deposition' => 'Petition dismissed',
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		'judge' => 'K.C. Bhanu, J.',
		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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			'id' => '439244',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
			'authreffered' => '',
			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
			'caseanalysis' => null,
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			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2003-03-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
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			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
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		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
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		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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orderk.c. bhanu, j.1. the above petitions are filed under section 482 of the code of criminal procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned iv metropolitan magistrate, hyderabad.2. as a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.3. the de facto complainant filed several complaints before the learned iv metropolitan magistrate, hyderabad, against the managing directors, directors and financial controller, including the petitioner, who is one of the directors of m/s. renewable energy systems ltd., (for short, 'resl') under section 138 of the negotiable instruments act, hereinafter to be referred to as 'the.....

Judgment:

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			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
			'authreffered' => '',
			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
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			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
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			'deposition' => 'Petition dismissed',
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			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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$title_for_layout = 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '439244',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
		'authreffered' => '',
		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'P.S. Sastry, Adv.',
		'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2003-03-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.C. Bhanu, J.',
		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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	(int) 1 => '<p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.',
	(int) 2 => '<p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.',
	(int) 3 => '<p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.',
	(int) 4 => '<p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.',
	(int) 5 => '<p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.',
	(int) 6 => '<p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.',
	(int) 7 => '<p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.',
	(int) 8 => '<p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.',
	(int) 9 => '<p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.',
	(int) 10 => '<p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:',
	(int) 11 => '<p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'',
	(int) 12 => '<p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.',
	(int) 13 => '<p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:',
	(int) 14 => '<p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'',
	(int) 15 => '<p>12. In Ram Lal (supra), the Apex Court has held as under:',
	(int) 16 => '<p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.',
	(int) 17 => '<p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' ',
	(int) 18 => '<p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.',
	(int) 19 => '<p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.',
	(int) 20 => '<p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.',
	(int) 21 => '<p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.',
	(int) 22 => '<p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.',
	(int) 23 => '<p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.',
	(int) 24 => '<p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.',
	(int) 25 => '<p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.',
	(int) 26 => '<p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.',
	(int) 27 => '<p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.',
	(int) 28 => '<p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.',
	(int) 29 => '<p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.',
	(int) 30 => ''
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ORDER

K.C. Bhanu, J.

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	'title_for_layout' => 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '439244',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
			'authreffered' => '',
			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2003-03-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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			'pubs' => '2003(1)ALD(Cri)580; 2003(2)ALT(Cri)566; III(2003)BC345',
			'ratiodecidendi' => '',
			'respondent' => 'State of A.P. and anr.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'p-suryanarayana-vs-state-a-p-anr',
	'args' => array(
		(int) 0 => '439244',
		(int) 1 => 'p-suryanarayana-vs-state-a-p-anr'
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$title_for_layout = 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '439244',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
		'authreffered' => '',
		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'P.S. Sastry, Adv.',
		'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2003-03-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.C. Bhanu, J.',
		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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		'pubs' => '2003(1)ALD(Cri)580; 2003(2)ALT(Cri)566; III(2003)BC345',
		'ratiodecidendi' => '',
		'respondent' => 'State of A.P. and anr.',
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		'circuit' => null
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	(int) 0 => '439244',
	(int) 1 => 'p-suryanarayana-vs-state-a-p-anr'
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$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>K.C. Bhanu, J.',
	(int) 1 => '<p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.',
	(int) 2 => '<p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.',
	(int) 3 => '<p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.',
	(int) 4 => '<p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.',
	(int) 5 => '<p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.',
	(int) 6 => '<p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.',
	(int) 7 => '<p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.',
	(int) 8 => '<p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.',
	(int) 9 => '<p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.',
	(int) 10 => '<p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:',
	(int) 11 => '<p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'',
	(int) 12 => '<p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.',
	(int) 13 => '<p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:',
	(int) 14 => '<p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'',
	(int) 15 => '<p>12. In Ram Lal (supra), the Apex Court has held as under:',
	(int) 16 => '<p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.',
	(int) 17 => '<p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' ',
	(int) 18 => '<p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.',
	(int) 19 => '<p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.',
	(int) 20 => '<p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.',
	(int) 21 => '<p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.',
	(int) 22 => '<p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.',
	(int) 23 => '<p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.',
	(int) 24 => '<p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.',
	(int) 25 => '<p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.',
	(int) 26 => '<p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.',
	(int) 27 => '<p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.',
	(int) 28 => '<p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.',
	(int) 29 => '<p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.',
	(int) 30 => ''
)
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1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.

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	'title_for_layout' => 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | ',
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			'id' => '439244',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
			'authreffered' => '',
			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2003-03-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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		'id' => '439244',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
		'authreffered' => '',
		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'P.S. Sastry, Adv.',
		'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2003-03-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.C. Bhanu, J.',
		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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	(int) 0 => 'ORDER<p>K.C. Bhanu, J.',
	(int) 1 => '<p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.',
	(int) 2 => '<p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.',
	(int) 3 => '<p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.',
	(int) 4 => '<p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.',
	(int) 5 => '<p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.',
	(int) 6 => '<p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.',
	(int) 7 => '<p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.',
	(int) 8 => '<p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.',
	(int) 9 => '<p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.',
	(int) 10 => '<p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:',
	(int) 11 => '<p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'',
	(int) 12 => '<p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.',
	(int) 13 => '<p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:',
	(int) 14 => '<p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'',
	(int) 15 => '<p>12. In Ram Lal (supra), the Apex Court has held as under:',
	(int) 16 => '<p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.',
	(int) 17 => '<p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' ',
	(int) 18 => '<p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.',
	(int) 19 => '<p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.',
	(int) 20 => '<p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.',
	(int) 21 => '<p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.',
	(int) 22 => '<p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.',
	(int) 23 => '<p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.',
	(int) 24 => '<p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.',
	(int) 25 => '<p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.',
	(int) 26 => '<p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.',
	(int) 27 => '<p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.',
	(int) 28 => '<p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.',
	(int) 29 => '<p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.',
	(int) 30 => ''
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2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.

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	'title_for_layout' => 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '439244',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
			'authreffered' => '',
			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
			'caseanalysis' => null,
			'casesref' => '',
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			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2003-03-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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$title_for_layout = 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '439244',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
		'authreffered' => '',
		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'P.S. Sastry, Adv.',
		'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2003-03-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.C. Bhanu, J.',
		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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	(int) 0 => 'ORDER<p>K.C. Bhanu, J.',
	(int) 1 => '<p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.',
	(int) 2 => '<p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.',
	(int) 3 => '<p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.',
	(int) 4 => '<p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.',
	(int) 5 => '<p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.',
	(int) 6 => '<p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.',
	(int) 7 => '<p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.',
	(int) 8 => '<p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.',
	(int) 9 => '<p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.',
	(int) 10 => '<p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:',
	(int) 11 => '<p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'',
	(int) 12 => '<p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.',
	(int) 13 => '<p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:',
	(int) 14 => '<p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'',
	(int) 15 => '<p>12. In Ram Lal (supra), the Apex Court has held as under:',
	(int) 16 => '<p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.',
	(int) 17 => '<p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' ',
	(int) 18 => '<p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.',
	(int) 19 => '<p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.',
	(int) 20 => '<p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.',
	(int) 21 => '<p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.',
	(int) 22 => '<p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.',
	(int) 23 => '<p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.',
	(int) 24 => '<p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.',
	(int) 25 => '<p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.',
	(int) 26 => '<p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.',
	(int) 27 => '<p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.',
	(int) 28 => '<p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.',
	(int) 29 => '<p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.',
	(int) 30 => ''
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3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.

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	'title_for_layout' => 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '439244',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
			'authreffered' => '',
			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2003-03-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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			'pubs' => '2003(1)ALD(Cri)580; 2003(2)ALT(Cri)566; III(2003)BC345',
			'ratiodecidendi' => '',
			'respondent' => 'State of A.P. and anr.',
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			'circuit' => null
		)
	),
	'casename_url' => 'p-suryanarayana-vs-state-a-p-anr',
	'args' => array(
		(int) 0 => '439244',
		(int) 1 => 'p-suryanarayana-vs-state-a-p-anr'
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$title_for_layout = 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '439244',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
		'authreffered' => '',
		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'P.S. Sastry, Adv.',
		'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2003-03-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.C. Bhanu, J.',
		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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		'respondent' => 'State of A.P. and anr.',
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		'circuit' => null
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	(int) 0 => '439244',
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$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>K.C. Bhanu, J.',
	(int) 1 => '<p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.',
	(int) 2 => '<p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.',
	(int) 3 => '<p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.',
	(int) 4 => '<p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.',
	(int) 5 => '<p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.',
	(int) 6 => '<p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.',
	(int) 7 => '<p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.',
	(int) 8 => '<p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.',
	(int) 9 => '<p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.',
	(int) 10 => '<p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:',
	(int) 11 => '<p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'',
	(int) 12 => '<p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.',
	(int) 13 => '<p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:',
	(int) 14 => '<p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'',
	(int) 15 => '<p>12. In Ram Lal (supra), the Apex Court has held as under:',
	(int) 16 => '<p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.',
	(int) 17 => '<p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' ',
	(int) 18 => '<p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.',
	(int) 19 => '<p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.',
	(int) 20 => '<p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.',
	(int) 21 => '<p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.',
	(int) 22 => '<p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.',
	(int) 23 => '<p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.',
	(int) 24 => '<p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.',
	(int) 25 => '<p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.',
	(int) 26 => '<p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.',
	(int) 27 => '<p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.',
	(int) 28 => '<p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.',
	(int) 29 => '<p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.',
	(int) 30 => ''
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4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.

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	'title_for_layout' => 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | ',
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			'id' => '439244',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
			'authreffered' => '',
			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2003-03-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
		'authreffered' => '',
		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'P.S. Sastry, Adv.',
		'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2003-03-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.C. Bhanu, J.',
		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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	(int) 0 => 'ORDER<p>K.C. Bhanu, J.',
	(int) 1 => '<p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.',
	(int) 2 => '<p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.',
	(int) 3 => '<p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.',
	(int) 4 => '<p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.',
	(int) 5 => '<p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.',
	(int) 6 => '<p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.',
	(int) 7 => '<p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.',
	(int) 8 => '<p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.',
	(int) 9 => '<p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.',
	(int) 10 => '<p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:',
	(int) 11 => '<p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'',
	(int) 12 => '<p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.',
	(int) 13 => '<p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:',
	(int) 14 => '<p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'',
	(int) 15 => '<p>12. In Ram Lal (supra), the Apex Court has held as under:',
	(int) 16 => '<p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.',
	(int) 17 => '<p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' ',
	(int) 18 => '<p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.',
	(int) 19 => '<p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.',
	(int) 20 => '<p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.',
	(int) 21 => '<p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.',
	(int) 22 => '<p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.',
	(int) 23 => '<p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.',
	(int) 24 => '<p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.',
	(int) 25 => '<p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.',
	(int) 26 => '<p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.',
	(int) 27 => '<p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.',
	(int) 28 => '<p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.',
	(int) 29 => '<p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.',
	(int) 30 => ''
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5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.

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	'title_for_layout' => 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | ',
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			'id' => '439244',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
			'authreffered' => '',
			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
			'caseanalysis' => null,
			'casesref' => '',
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			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2003-03-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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$title_for_layout = 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '439244',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
		'authreffered' => '',
		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'P.S. Sastry, Adv.',
		'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2003-03-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.C. Bhanu, J.',
		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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	(int) 0 => 'ORDER<p>K.C. Bhanu, J.',
	(int) 1 => '<p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.',
	(int) 2 => '<p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.',
	(int) 3 => '<p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.',
	(int) 4 => '<p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.',
	(int) 5 => '<p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.',
	(int) 6 => '<p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.',
	(int) 7 => '<p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.',
	(int) 8 => '<p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.',
	(int) 9 => '<p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.',
	(int) 10 => '<p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:',
	(int) 11 => '<p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'',
	(int) 12 => '<p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.',
	(int) 13 => '<p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:',
	(int) 14 => '<p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'',
	(int) 15 => '<p>12. In Ram Lal (supra), the Apex Court has held as under:',
	(int) 16 => '<p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.',
	(int) 17 => '<p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' ',
	(int) 18 => '<p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.',
	(int) 19 => '<p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.',
	(int) 20 => '<p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.',
	(int) 21 => '<p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.',
	(int) 22 => '<p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.',
	(int) 23 => '<p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.',
	(int) 24 => '<p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.',
	(int) 25 => '<p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.',
	(int) 26 => '<p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.',
	(int) 27 => '<p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.',
	(int) 28 => '<p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.',
	(int) 29 => '<p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.',
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6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.

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	'title_for_layout' => 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | ',
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			'id' => '439244',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
			'authreffered' => '',
			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
			'caseanalysis' => null,
			'casesref' => '',
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			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2003-03-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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			'ratiodecidendi' => '',
			'respondent' => 'State of A.P. and anr.',
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			'circuit' => null
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	),
	'casename_url' => 'p-suryanarayana-vs-state-a-p-anr',
	'args' => array(
		(int) 0 => '439244',
		(int) 1 => 'p-suryanarayana-vs-state-a-p-anr'
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$title_for_layout = 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '439244',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
		'authreffered' => '',
		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'P.S. Sastry, Adv.',
		'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2003-03-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.C. Bhanu, J.',
		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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		'respondent' => 'State of A.P. and anr.',
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	(int) 0 => '439244',
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$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>K.C. Bhanu, J.',
	(int) 1 => '<p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.',
	(int) 2 => '<p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.',
	(int) 3 => '<p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.',
	(int) 4 => '<p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.',
	(int) 5 => '<p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.',
	(int) 6 => '<p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.',
	(int) 7 => '<p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.',
	(int) 8 => '<p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.',
	(int) 9 => '<p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.',
	(int) 10 => '<p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:',
	(int) 11 => '<p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'',
	(int) 12 => '<p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.',
	(int) 13 => '<p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:',
	(int) 14 => '<p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'',
	(int) 15 => '<p>12. In Ram Lal (supra), the Apex Court has held as under:',
	(int) 16 => '<p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.',
	(int) 17 => '<p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' ',
	(int) 18 => '<p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.',
	(int) 19 => '<p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.',
	(int) 20 => '<p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.',
	(int) 21 => '<p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.',
	(int) 22 => '<p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.',
	(int) 23 => '<p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.',
	(int) 24 => '<p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.',
	(int) 25 => '<p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.',
	(int) 26 => '<p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.',
	(int) 27 => '<p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.',
	(int) 28 => '<p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.',
	(int) 29 => '<p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.',
	(int) 30 => ''
)
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7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.

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	'title_for_layout' => 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | ',
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			'id' => '439244',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
			'authreffered' => '',
			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2003-03-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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		'id' => '439244',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
		'authreffered' => '',
		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'P.S. Sastry, Adv.',
		'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2003-03-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.C. Bhanu, J.',
		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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	(int) 0 => 'ORDER<p>K.C. Bhanu, J.',
	(int) 1 => '<p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.',
	(int) 2 => '<p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.',
	(int) 3 => '<p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.',
	(int) 4 => '<p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.',
	(int) 5 => '<p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.',
	(int) 6 => '<p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.',
	(int) 7 => '<p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.',
	(int) 8 => '<p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.',
	(int) 9 => '<p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.',
	(int) 10 => '<p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:',
	(int) 11 => '<p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'',
	(int) 12 => '<p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.',
	(int) 13 => '<p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:',
	(int) 14 => '<p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'',
	(int) 15 => '<p>12. In Ram Lal (supra), the Apex Court has held as under:',
	(int) 16 => '<p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.',
	(int) 17 => '<p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' ',
	(int) 18 => '<p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.',
	(int) 19 => '<p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.',
	(int) 20 => '<p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.',
	(int) 21 => '<p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.',
	(int) 22 => '<p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.',
	(int) 23 => '<p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.',
	(int) 24 => '<p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.',
	(int) 25 => '<p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.',
	(int) 26 => '<p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.',
	(int) 27 => '<p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.',
	(int) 28 => '<p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.',
	(int) 29 => '<p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.',
	(int) 30 => ''
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8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.

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			'id' => '439244',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
			'authreffered' => '',
			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
			'caseanalysis' => null,
			'casesref' => '',
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			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2003-03-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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$title_for_layout = 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '439244',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
		'authreffered' => '',
		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'P.S. Sastry, Adv.',
		'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2003-03-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.C. Bhanu, J.',
		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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	(int) 0 => 'ORDER<p>K.C. Bhanu, J.',
	(int) 1 => '<p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.',
	(int) 2 => '<p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.',
	(int) 3 => '<p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.',
	(int) 4 => '<p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.',
	(int) 5 => '<p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.',
	(int) 6 => '<p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.',
	(int) 7 => '<p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.',
	(int) 8 => '<p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.',
	(int) 9 => '<p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.',
	(int) 10 => '<p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:',
	(int) 11 => '<p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'',
	(int) 12 => '<p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.',
	(int) 13 => '<p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:',
	(int) 14 => '<p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'',
	(int) 15 => '<p>12. In Ram Lal (supra), the Apex Court has held as under:',
	(int) 16 => '<p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.',
	(int) 17 => '<p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' ',
	(int) 18 => '<p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.',
	(int) 19 => '<p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.',
	(int) 20 => '<p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.',
	(int) 21 => '<p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.',
	(int) 22 => '<p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.',
	(int) 23 => '<p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.',
	(int) 24 => '<p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.',
	(int) 25 => '<p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.',
	(int) 26 => '<p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.',
	(int) 27 => '<p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.',
	(int) 28 => '<p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.',
	(int) 29 => '<p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.',
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9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.

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	'title_for_layout' => 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '439244',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
			'authreffered' => '',
			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
			'caseanalysis' => null,
			'casesref' => '',
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			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2003-03-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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			'pubs' => '2003(1)ALD(Cri)580; 2003(2)ALT(Cri)566; III(2003)BC345',
			'ratiodecidendi' => '',
			'respondent' => 'State of A.P. and anr.',
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			'circuit' => null
		)
	),
	'casename_url' => 'p-suryanarayana-vs-state-a-p-anr',
	'args' => array(
		(int) 0 => '439244',
		(int) 1 => 'p-suryanarayana-vs-state-a-p-anr'
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$title_for_layout = 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '439244',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
		'authreffered' => '',
		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'P.S. Sastry, Adv.',
		'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2003-03-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.C. Bhanu, J.',
		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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		'respondent' => 'State of A.P. and anr.',
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		'circuit' => null
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	(int) 0 => '439244',
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$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>K.C. Bhanu, J.',
	(int) 1 => '<p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.',
	(int) 2 => '<p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.',
	(int) 3 => '<p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.',
	(int) 4 => '<p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.',
	(int) 5 => '<p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.',
	(int) 6 => '<p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.',
	(int) 7 => '<p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.',
	(int) 8 => '<p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.',
	(int) 9 => '<p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.',
	(int) 10 => '<p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:',
	(int) 11 => '<p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'',
	(int) 12 => '<p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.',
	(int) 13 => '<p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:',
	(int) 14 => '<p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'',
	(int) 15 => '<p>12. In Ram Lal (supra), the Apex Court has held as under:',
	(int) 16 => '<p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.',
	(int) 17 => '<p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' ',
	(int) 18 => '<p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.',
	(int) 19 => '<p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.',
	(int) 20 => '<p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.',
	(int) 21 => '<p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.',
	(int) 22 => '<p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.',
	(int) 23 => '<p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.',
	(int) 24 => '<p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.',
	(int) 25 => '<p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.',
	(int) 26 => '<p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.',
	(int) 27 => '<p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.',
	(int) 28 => '<p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.',
	(int) 29 => '<p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.',
	(int) 30 => ''
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In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:

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	'title_for_layout' => 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | ',
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			'id' => '439244',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
			'authreffered' => '',
			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
			'caseanalysis' => null,
			'casesref' => '',
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			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2003-03-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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		'id' => '439244',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
		'authreffered' => '',
		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'P.S. Sastry, Adv.',
		'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2003-03-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.C. Bhanu, J.',
		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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		'pubs' => '2003(1)ALD(Cri)580; 2003(2)ALT(Cri)566; III(2003)BC345',
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		'respondent' => 'State of A.P. and anr.',
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	(int) 0 => 'ORDER<p>K.C. Bhanu, J.',
	(int) 1 => '<p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.',
	(int) 2 => '<p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.',
	(int) 3 => '<p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.',
	(int) 4 => '<p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.',
	(int) 5 => '<p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.',
	(int) 6 => '<p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.',
	(int) 7 => '<p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.',
	(int) 8 => '<p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.',
	(int) 9 => '<p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.',
	(int) 10 => '<p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:',
	(int) 11 => '<p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'',
	(int) 12 => '<p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.',
	(int) 13 => '<p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:',
	(int) 14 => '<p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'',
	(int) 15 => '<p>12. In Ram Lal (supra), the Apex Court has held as under:',
	(int) 16 => '<p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.',
	(int) 17 => '<p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' ',
	(int) 18 => '<p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.',
	(int) 19 => '<p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.',
	(int) 20 => '<p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.',
	(int) 21 => '<p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.',
	(int) 22 => '<p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.',
	(int) 23 => '<p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.',
	(int) 24 => '<p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.',
	(int) 25 => '<p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.',
	(int) 26 => '<p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.',
	(int) 27 => '<p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.',
	(int) 28 => '<p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.',
	(int) 29 => '<p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.',
	(int) 30 => ''
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'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'

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	'title_for_layout' => 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | ',
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			'id' => '439244',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
			'authreffered' => '',
			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
			'caseanalysis' => null,
			'casesref' => '',
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			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2003-03-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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$title_for_layout = 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '439244',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
		'authreffered' => '',
		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'P.S. Sastry, Adv.',
		'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2003-03-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.C. Bhanu, J.',
		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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	(int) 1 => '<p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.',
	(int) 2 => '<p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.',
	(int) 3 => '<p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.',
	(int) 4 => '<p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.',
	(int) 5 => '<p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.',
	(int) 6 => '<p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.',
	(int) 7 => '<p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.',
	(int) 8 => '<p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.',
	(int) 9 => '<p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.',
	(int) 10 => '<p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:',
	(int) 11 => '<p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'',
	(int) 12 => '<p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.',
	(int) 13 => '<p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:',
	(int) 14 => '<p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'',
	(int) 15 => '<p>12. In Ram Lal (supra), the Apex Court has held as under:',
	(int) 16 => '<p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.',
	(int) 17 => '<p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' ',
	(int) 18 => '<p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.',
	(int) 19 => '<p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.',
	(int) 20 => '<p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.',
	(int) 21 => '<p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.',
	(int) 22 => '<p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.',
	(int) 23 => '<p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.',
	(int) 24 => '<p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.',
	(int) 25 => '<p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.',
	(int) 26 => '<p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.',
	(int) 27 => '<p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.',
	(int) 28 => '<p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.',
	(int) 29 => '<p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.',
	(int) 30 => ''
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10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.

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	'title_for_layout' => 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '439244',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
			'authreffered' => '',
			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2003-03-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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			'pubs' => '2003(1)ALD(Cri)580; 2003(2)ALT(Cri)566; III(2003)BC345',
			'ratiodecidendi' => '',
			'respondent' => 'State of A.P. and anr.',
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			'circuit' => null
		)
	),
	'casename_url' => 'p-suryanarayana-vs-state-a-p-anr',
	'args' => array(
		(int) 0 => '439244',
		(int) 1 => 'p-suryanarayana-vs-state-a-p-anr'
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$title_for_layout = 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '439244',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
		'authreffered' => '',
		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'P.S. Sastry, Adv.',
		'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2003-03-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.C. Bhanu, J.',
		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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		'respondent' => 'State of A.P. and anr.',
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		'circuit' => null
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	(int) 0 => '439244',
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$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>K.C. Bhanu, J.',
	(int) 1 => '<p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.',
	(int) 2 => '<p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.',
	(int) 3 => '<p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.',
	(int) 4 => '<p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.',
	(int) 5 => '<p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.',
	(int) 6 => '<p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.',
	(int) 7 => '<p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.',
	(int) 8 => '<p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.',
	(int) 9 => '<p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.',
	(int) 10 => '<p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:',
	(int) 11 => '<p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'',
	(int) 12 => '<p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.',
	(int) 13 => '<p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:',
	(int) 14 => '<p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'',
	(int) 15 => '<p>12. In Ram Lal (supra), the Apex Court has held as under:',
	(int) 16 => '<p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.',
	(int) 17 => '<p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' ',
	(int) 18 => '<p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.',
	(int) 19 => '<p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.',
	(int) 20 => '<p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.',
	(int) 21 => '<p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.',
	(int) 22 => '<p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.',
	(int) 23 => '<p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.',
	(int) 24 => '<p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.',
	(int) 25 => '<p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.',
	(int) 26 => '<p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.',
	(int) 27 => '<p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.',
	(int) 28 => '<p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.',
	(int) 29 => '<p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.',
	(int) 30 => ''
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11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:

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	'title_for_layout' => 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | ',
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			'id' => '439244',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
			'authreffered' => '',
			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2003-03-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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		'id' => '439244',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
		'authreffered' => '',
		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'P.S. Sastry, Adv.',
		'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2003-03-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.C. Bhanu, J.',
		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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		'pubs' => '2003(1)ALD(Cri)580; 2003(2)ALT(Cri)566; III(2003)BC345',
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	(int) 0 => 'ORDER<p>K.C. Bhanu, J.',
	(int) 1 => '<p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.',
	(int) 2 => '<p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.',
	(int) 3 => '<p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.',
	(int) 4 => '<p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.',
	(int) 5 => '<p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.',
	(int) 6 => '<p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.',
	(int) 7 => '<p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.',
	(int) 8 => '<p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.',
	(int) 9 => '<p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.',
	(int) 10 => '<p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:',
	(int) 11 => '<p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'',
	(int) 12 => '<p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.',
	(int) 13 => '<p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:',
	(int) 14 => '<p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'',
	(int) 15 => '<p>12. In Ram Lal (supra), the Apex Court has held as under:',
	(int) 16 => '<p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.',
	(int) 17 => '<p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' ',
	(int) 18 => '<p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.',
	(int) 19 => '<p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.',
	(int) 20 => '<p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.',
	(int) 21 => '<p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.',
	(int) 22 => '<p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.',
	(int) 23 => '<p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.',
	(int) 24 => '<p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.',
	(int) 25 => '<p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.',
	(int) 26 => '<p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.',
	(int) 27 => '<p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.',
	(int) 28 => '<p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.',
	(int) 29 => '<p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.',
	(int) 30 => ''
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'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'

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	'title_for_layout' => 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | ',
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			'id' => '439244',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
			'authreffered' => '',
			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
			'caseanalysis' => null,
			'casesref' => '',
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			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2003-03-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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$title_for_layout = 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '439244',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
		'authreffered' => '',
		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'P.S. Sastry, Adv.',
		'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2003-03-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.C. Bhanu, J.',
		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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	(int) 1 => '<p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.',
	(int) 2 => '<p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.',
	(int) 3 => '<p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.',
	(int) 4 => '<p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.',
	(int) 5 => '<p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.',
	(int) 6 => '<p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.',
	(int) 7 => '<p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.',
	(int) 8 => '<p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.',
	(int) 9 => '<p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.',
	(int) 10 => '<p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:',
	(int) 11 => '<p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'',
	(int) 12 => '<p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.',
	(int) 13 => '<p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:',
	(int) 14 => '<p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'',
	(int) 15 => '<p>12. In Ram Lal (supra), the Apex Court has held as under:',
	(int) 16 => '<p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.',
	(int) 17 => '<p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' ',
	(int) 18 => '<p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.',
	(int) 19 => '<p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.',
	(int) 20 => '<p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.',
	(int) 21 => '<p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.',
	(int) 22 => '<p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.',
	(int) 23 => '<p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.',
	(int) 24 => '<p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.',
	(int) 25 => '<p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.',
	(int) 26 => '<p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.',
	(int) 27 => '<p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.',
	(int) 28 => '<p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.',
	(int) 29 => '<p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.',
	(int) 30 => ''
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12. In Ram Lal (supra), the Apex Court has held as under:

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	'title_for_layout' => 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '439244',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
			'authreffered' => '',
			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2003-03-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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			'pubs' => '2003(1)ALD(Cri)580; 2003(2)ALT(Cri)566; III(2003)BC345',
			'ratiodecidendi' => '',
			'respondent' => 'State of A.P. and anr.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'p-suryanarayana-vs-state-a-p-anr',
	'args' => array(
		(int) 0 => '439244',
		(int) 1 => 'p-suryanarayana-vs-state-a-p-anr'
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$title_for_layout = 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '439244',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
		'authreffered' => '',
		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'P.S. Sastry, Adv.',
		'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2003-03-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.C. Bhanu, J.',
		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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		'pubs' => '2003(1)ALD(Cri)580; 2003(2)ALT(Cri)566; III(2003)BC345',
		'ratiodecidendi' => '',
		'respondent' => 'State of A.P. and anr.',
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		'circuit' => null
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	(int) 0 => '439244',
	(int) 1 => 'p-suryanarayana-vs-state-a-p-anr'
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$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>K.C. Bhanu, J.',
	(int) 1 => '<p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.',
	(int) 2 => '<p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.',
	(int) 3 => '<p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.',
	(int) 4 => '<p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.',
	(int) 5 => '<p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.',
	(int) 6 => '<p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.',
	(int) 7 => '<p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.',
	(int) 8 => '<p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.',
	(int) 9 => '<p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.',
	(int) 10 => '<p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:',
	(int) 11 => '<p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'',
	(int) 12 => '<p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.',
	(int) 13 => '<p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:',
	(int) 14 => '<p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'',
	(int) 15 => '<p>12. In Ram Lal (supra), the Apex Court has held as under:',
	(int) 16 => '<p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.',
	(int) 17 => '<p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' ',
	(int) 18 => '<p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.',
	(int) 19 => '<p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.',
	(int) 20 => '<p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.',
	(int) 21 => '<p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.',
	(int) 22 => '<p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.',
	(int) 23 => '<p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.',
	(int) 24 => '<p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.',
	(int) 25 => '<p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.',
	(int) 26 => '<p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.',
	(int) 27 => '<p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.',
	(int) 28 => '<p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.',
	(int) 29 => '<p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.',
	(int) 30 => ''
)
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'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.

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	'title_for_layout' => 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | ',
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			'id' => '439244',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
			'authreffered' => '',
			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
			'caseanalysis' => null,
			'casesref' => '',
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			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2003-03-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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		'id' => '439244',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
		'authreffered' => '',
		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'P.S. Sastry, Adv.',
		'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2003-03-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.C. Bhanu, J.',
		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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	(int) 0 => 'ORDER<p>K.C. Bhanu, J.',
	(int) 1 => '<p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.',
	(int) 2 => '<p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.',
	(int) 3 => '<p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.',
	(int) 4 => '<p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.',
	(int) 5 => '<p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.',
	(int) 6 => '<p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.',
	(int) 7 => '<p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.',
	(int) 8 => '<p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.',
	(int) 9 => '<p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.',
	(int) 10 => '<p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:',
	(int) 11 => '<p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'',
	(int) 12 => '<p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.',
	(int) 13 => '<p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:',
	(int) 14 => '<p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'',
	(int) 15 => '<p>12. In Ram Lal (supra), the Apex Court has held as under:',
	(int) 16 => '<p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.',
	(int) 17 => '<p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' ',
	(int) 18 => '<p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.',
	(int) 19 => '<p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.',
	(int) 20 => '<p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.',
	(int) 21 => '<p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.',
	(int) 22 => '<p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.',
	(int) 23 => '<p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.',
	(int) 24 => '<p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.',
	(int) 25 => '<p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.',
	(int) 26 => '<p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.',
	(int) 27 => '<p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.',
	(int) 28 => '<p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.',
	(int) 29 => '<p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.',
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Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.'

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	'title_for_layout' => 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | ',
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			'id' => '439244',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
			'authreffered' => '',
			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
			'caseanalysis' => null,
			'casesref' => '',
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			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2003-03-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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$title_for_layout = 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '439244',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
		'authreffered' => '',
		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'P.S. Sastry, Adv.',
		'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2003-03-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.C. Bhanu, J.',
		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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	(int) 1 => '<p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.',
	(int) 2 => '<p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.',
	(int) 3 => '<p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.',
	(int) 4 => '<p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.',
	(int) 5 => '<p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.',
	(int) 6 => '<p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.',
	(int) 7 => '<p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.',
	(int) 8 => '<p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.',
	(int) 9 => '<p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.',
	(int) 10 => '<p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:',
	(int) 11 => '<p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'',
	(int) 12 => '<p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.',
	(int) 13 => '<p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:',
	(int) 14 => '<p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'',
	(int) 15 => '<p>12. In Ram Lal (supra), the Apex Court has held as under:',
	(int) 16 => '<p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.',
	(int) 17 => '<p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' ',
	(int) 18 => '<p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.',
	(int) 19 => '<p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.',
	(int) 20 => '<p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.',
	(int) 21 => '<p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.',
	(int) 22 => '<p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.',
	(int) 23 => '<p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.',
	(int) 24 => '<p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.',
	(int) 25 => '<p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.',
	(int) 26 => '<p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.',
	(int) 27 => '<p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.',
	(int) 28 => '<p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.',
	(int) 29 => '<p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.',
	(int) 30 => ''
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13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.

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	'title_for_layout' => 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '439244',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
			'authreffered' => '',
			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2003-03-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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			'pubs' => '2003(1)ALD(Cri)580; 2003(2)ALT(Cri)566; III(2003)BC345',
			'ratiodecidendi' => '',
			'respondent' => 'State of A.P. and anr.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'p-suryanarayana-vs-state-a-p-anr',
	'args' => array(
		(int) 0 => '439244',
		(int) 1 => 'p-suryanarayana-vs-state-a-p-anr'
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$title_for_layout = 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '439244',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
		'authreffered' => '',
		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'P.S. Sastry, Adv.',
		'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2003-03-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.C. Bhanu, J.',
		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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		'pubs' => '2003(1)ALD(Cri)580; 2003(2)ALT(Cri)566; III(2003)BC345',
		'ratiodecidendi' => '',
		'respondent' => 'State of A.P. and anr.',
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		'circuit' => null
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	(int) 0 => '439244',
	(int) 1 => 'p-suryanarayana-vs-state-a-p-anr'
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$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>K.C. Bhanu, J.',
	(int) 1 => '<p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.',
	(int) 2 => '<p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.',
	(int) 3 => '<p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.',
	(int) 4 => '<p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.',
	(int) 5 => '<p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.',
	(int) 6 => '<p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.',
	(int) 7 => '<p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.',
	(int) 8 => '<p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.',
	(int) 9 => '<p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.',
	(int) 10 => '<p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:',
	(int) 11 => '<p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'',
	(int) 12 => '<p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.',
	(int) 13 => '<p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:',
	(int) 14 => '<p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'',
	(int) 15 => '<p>12. In Ram Lal (supra), the Apex Court has held as under:',
	(int) 16 => '<p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.',
	(int) 17 => '<p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' ',
	(int) 18 => '<p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.',
	(int) 19 => '<p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.',
	(int) 20 => '<p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.',
	(int) 21 => '<p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.',
	(int) 22 => '<p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.',
	(int) 23 => '<p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.',
	(int) 24 => '<p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.',
	(int) 25 => '<p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.',
	(int) 26 => '<p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.',
	(int) 27 => '<p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.',
	(int) 28 => '<p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.',
	(int) 29 => '<p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.',
	(int) 30 => ''
)
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14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.

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	'title_for_layout' => 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | ',
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			'id' => '439244',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
			'authreffered' => '',
			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2003-03-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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		'id' => '439244',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
		'authreffered' => '',
		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'P.S. Sastry, Adv.',
		'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2003-03-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.C. Bhanu, J.',
		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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	(int) 0 => 'ORDER<p>K.C. Bhanu, J.',
	(int) 1 => '<p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.',
	(int) 2 => '<p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.',
	(int) 3 => '<p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.',
	(int) 4 => '<p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.',
	(int) 5 => '<p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.',
	(int) 6 => '<p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.',
	(int) 7 => '<p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.',
	(int) 8 => '<p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.',
	(int) 9 => '<p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.',
	(int) 10 => '<p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:',
	(int) 11 => '<p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'',
	(int) 12 => '<p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.',
	(int) 13 => '<p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:',
	(int) 14 => '<p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'',
	(int) 15 => '<p>12. In Ram Lal (supra), the Apex Court has held as under:',
	(int) 16 => '<p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.',
	(int) 17 => '<p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' ',
	(int) 18 => '<p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.',
	(int) 19 => '<p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.',
	(int) 20 => '<p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.',
	(int) 21 => '<p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.',
	(int) 22 => '<p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.',
	(int) 23 => '<p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.',
	(int) 24 => '<p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.',
	(int) 25 => '<p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.',
	(int) 26 => '<p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.',
	(int) 27 => '<p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.',
	(int) 28 => '<p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.',
	(int) 29 => '<p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.',
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15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.

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	'title_for_layout' => 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | ',
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			'id' => '439244',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
			'authreffered' => '',
			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2003-03-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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$title_for_layout = 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '439244',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
		'authreffered' => '',
		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'P.S. Sastry, Adv.',
		'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2003-03-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.C. Bhanu, J.',
		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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	(int) 1 => '<p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.',
	(int) 2 => '<p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.',
	(int) 3 => '<p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.',
	(int) 4 => '<p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.',
	(int) 5 => '<p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.',
	(int) 6 => '<p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.',
	(int) 7 => '<p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.',
	(int) 8 => '<p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.',
	(int) 9 => '<p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.',
	(int) 10 => '<p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:',
	(int) 11 => '<p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'',
	(int) 12 => '<p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.',
	(int) 13 => '<p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:',
	(int) 14 => '<p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'',
	(int) 15 => '<p>12. In Ram Lal (supra), the Apex Court has held as under:',
	(int) 16 => '<p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.',
	(int) 17 => '<p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' ',
	(int) 18 => '<p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.',
	(int) 19 => '<p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.',
	(int) 20 => '<p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.',
	(int) 21 => '<p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.',
	(int) 22 => '<p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.',
	(int) 23 => '<p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.',
	(int) 24 => '<p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.',
	(int) 25 => '<p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.',
	(int) 26 => '<p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.',
	(int) 27 => '<p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.',
	(int) 28 => '<p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.',
	(int) 29 => '<p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.',
	(int) 30 => ''
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16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.

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	'title_for_layout' => 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '439244',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
			'authreffered' => '',
			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2003-03-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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			'pubs' => '2003(1)ALD(Cri)580; 2003(2)ALT(Cri)566; III(2003)BC345',
			'ratiodecidendi' => '',
			'respondent' => 'State of A.P. and anr.',
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			'circuit' => null
		)
	),
	'casename_url' => 'p-suryanarayana-vs-state-a-p-anr',
	'args' => array(
		(int) 0 => '439244',
		(int) 1 => 'p-suryanarayana-vs-state-a-p-anr'
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$title_for_layout = 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '439244',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
		'authreffered' => '',
		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'P.S. Sastry, Adv.',
		'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2003-03-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.C. Bhanu, J.',
		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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		'respondent' => 'State of A.P. and anr.',
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		'circuit' => null
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	(int) 0 => '439244',
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$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>K.C. Bhanu, J.',
	(int) 1 => '<p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.',
	(int) 2 => '<p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.',
	(int) 3 => '<p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.',
	(int) 4 => '<p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.',
	(int) 5 => '<p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.',
	(int) 6 => '<p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.',
	(int) 7 => '<p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.',
	(int) 8 => '<p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.',
	(int) 9 => '<p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.',
	(int) 10 => '<p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:',
	(int) 11 => '<p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'',
	(int) 12 => '<p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.',
	(int) 13 => '<p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:',
	(int) 14 => '<p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'',
	(int) 15 => '<p>12. In Ram Lal (supra), the Apex Court has held as under:',
	(int) 16 => '<p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.',
	(int) 17 => '<p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' ',
	(int) 18 => '<p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.',
	(int) 19 => '<p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.',
	(int) 20 => '<p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.',
	(int) 21 => '<p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.',
	(int) 22 => '<p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.',
	(int) 23 => '<p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.',
	(int) 24 => '<p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.',
	(int) 25 => '<p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.',
	(int) 26 => '<p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.',
	(int) 27 => '<p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.',
	(int) 28 => '<p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.',
	(int) 29 => '<p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.',
	(int) 30 => ''
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17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.

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	'title_for_layout' => 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '439244',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
			'authreffered' => '',
			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2003-03-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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		'id' => '439244',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
		'authreffered' => '',
		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'P.S. Sastry, Adv.',
		'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2003-03-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.C. Bhanu, J.',
		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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	(int) 0 => 'ORDER<p>K.C. Bhanu, J.',
	(int) 1 => '<p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.',
	(int) 2 => '<p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.',
	(int) 3 => '<p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.',
	(int) 4 => '<p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.',
	(int) 5 => '<p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.',
	(int) 6 => '<p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.',
	(int) 7 => '<p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.',
	(int) 8 => '<p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.',
	(int) 9 => '<p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.',
	(int) 10 => '<p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:',
	(int) 11 => '<p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'',
	(int) 12 => '<p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.',
	(int) 13 => '<p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:',
	(int) 14 => '<p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'',
	(int) 15 => '<p>12. In Ram Lal (supra), the Apex Court has held as under:',
	(int) 16 => '<p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.',
	(int) 17 => '<p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' ',
	(int) 18 => '<p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.',
	(int) 19 => '<p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.',
	(int) 20 => '<p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.',
	(int) 21 => '<p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.',
	(int) 22 => '<p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.',
	(int) 23 => '<p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.',
	(int) 24 => '<p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.',
	(int) 25 => '<p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.',
	(int) 26 => '<p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.',
	(int) 27 => '<p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.',
	(int) 28 => '<p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.',
	(int) 29 => '<p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.',
	(int) 30 => ''
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18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.

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	'title_for_layout' => 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | ',
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			'id' => '439244',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
			'authreffered' => '',
			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2003-03-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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$title_for_layout = 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '439244',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
		'authreffered' => '',
		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'P.S. Sastry, Adv.',
		'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2003-03-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.C. Bhanu, J.',
		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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	(int) 1 => '<p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.',
	(int) 2 => '<p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.',
	(int) 3 => '<p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.',
	(int) 4 => '<p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.',
	(int) 5 => '<p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.',
	(int) 6 => '<p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.',
	(int) 7 => '<p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.',
	(int) 8 => '<p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.',
	(int) 9 => '<p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.',
	(int) 10 => '<p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:',
	(int) 11 => '<p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'',
	(int) 12 => '<p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.',
	(int) 13 => '<p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:',
	(int) 14 => '<p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'',
	(int) 15 => '<p>12. In Ram Lal (supra), the Apex Court has held as under:',
	(int) 16 => '<p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.',
	(int) 17 => '<p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' ',
	(int) 18 => '<p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.',
	(int) 19 => '<p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.',
	(int) 20 => '<p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.',
	(int) 21 => '<p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.',
	(int) 22 => '<p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.',
	(int) 23 => '<p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.',
	(int) 24 => '<p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.',
	(int) 25 => '<p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.',
	(int) 26 => '<p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.',
	(int) 27 => '<p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.',
	(int) 28 => '<p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.',
	(int) 29 => '<p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.',
	(int) 30 => ''
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19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.

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	'title_for_layout' => 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '439244',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
			'authreffered' => '',
			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2003-03-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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			'pubs' => '2003(1)ALD(Cri)580; 2003(2)ALT(Cri)566; III(2003)BC345',
			'ratiodecidendi' => '',
			'respondent' => 'State of A.P. and anr.',
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			'circuit' => null
		)
	),
	'casename_url' => 'p-suryanarayana-vs-state-a-p-anr',
	'args' => array(
		(int) 0 => '439244',
		(int) 1 => 'p-suryanarayana-vs-state-a-p-anr'
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$title_for_layout = 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '439244',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
		'authreffered' => '',
		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'P.S. Sastry, Adv.',
		'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2003-03-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.C. Bhanu, J.',
		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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		'respondent' => 'State of A.P. and anr.',
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		'circuit' => null
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	(int) 0 => '439244',
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$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>K.C. Bhanu, J.',
	(int) 1 => '<p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.',
	(int) 2 => '<p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.',
	(int) 3 => '<p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.',
	(int) 4 => '<p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.',
	(int) 5 => '<p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.',
	(int) 6 => '<p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.',
	(int) 7 => '<p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.',
	(int) 8 => '<p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.',
	(int) 9 => '<p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.',
	(int) 10 => '<p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:',
	(int) 11 => '<p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'',
	(int) 12 => '<p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.',
	(int) 13 => '<p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:',
	(int) 14 => '<p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'',
	(int) 15 => '<p>12. In Ram Lal (supra), the Apex Court has held as under:',
	(int) 16 => '<p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.',
	(int) 17 => '<p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' ',
	(int) 18 => '<p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.',
	(int) 19 => '<p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.',
	(int) 20 => '<p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.',
	(int) 21 => '<p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.',
	(int) 22 => '<p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.',
	(int) 23 => '<p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.',
	(int) 24 => '<p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.',
	(int) 25 => '<p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.',
	(int) 26 => '<p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.',
	(int) 27 => '<p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.',
	(int) 28 => '<p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.',
	(int) 29 => '<p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.',
	(int) 30 => ''
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20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.

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	'title_for_layout' => 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '439244',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
			'authreffered' => '',
			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2003-03-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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		'id' => '439244',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
		'authreffered' => '',
		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'P.S. Sastry, Adv.',
		'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2003-03-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.C. Bhanu, J.',
		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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	(int) 0 => 'ORDER<p>K.C. Bhanu, J.',
	(int) 1 => '<p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.',
	(int) 2 => '<p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.',
	(int) 3 => '<p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.',
	(int) 4 => '<p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.',
	(int) 5 => '<p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.',
	(int) 6 => '<p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.',
	(int) 7 => '<p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.',
	(int) 8 => '<p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.',
	(int) 9 => '<p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.',
	(int) 10 => '<p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:',
	(int) 11 => '<p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'',
	(int) 12 => '<p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.',
	(int) 13 => '<p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:',
	(int) 14 => '<p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'',
	(int) 15 => '<p>12. In Ram Lal (supra), the Apex Court has held as under:',
	(int) 16 => '<p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.',
	(int) 17 => '<p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' ',
	(int) 18 => '<p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.',
	(int) 19 => '<p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.',
	(int) 20 => '<p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.',
	(int) 21 => '<p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.',
	(int) 22 => '<p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.',
	(int) 23 => '<p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.',
	(int) 24 => '<p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.',
	(int) 25 => '<p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.',
	(int) 26 => '<p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.',
	(int) 27 => '<p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.',
	(int) 28 => '<p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.',
	(int) 29 => '<p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.',
	(int) 30 => ''
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21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.

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	'title_for_layout' => 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | ',
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			'id' => '439244',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
			'authreffered' => '',
			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2003-03-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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$title_for_layout = 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | '
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	'Judgement' => array(
		'id' => '439244',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
		'authreffered' => '',
		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'P.S. Sastry, Adv.',
		'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2003-03-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.C. Bhanu, J.',
		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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	(int) 0 => 'ORDER<p>K.C. Bhanu, J.',
	(int) 1 => '<p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.',
	(int) 2 => '<p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.',
	(int) 3 => '<p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.',
	(int) 4 => '<p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.',
	(int) 5 => '<p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.',
	(int) 6 => '<p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.',
	(int) 7 => '<p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.',
	(int) 8 => '<p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.',
	(int) 9 => '<p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.',
	(int) 10 => '<p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:',
	(int) 11 => '<p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'',
	(int) 12 => '<p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.',
	(int) 13 => '<p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:',
	(int) 14 => '<p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'',
	(int) 15 => '<p>12. In Ram Lal (supra), the Apex Court has held as under:',
	(int) 16 => '<p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.',
	(int) 17 => '<p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' ',
	(int) 18 => '<p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.',
	(int) 19 => '<p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.',
	(int) 20 => '<p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.',
	(int) 21 => '<p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.',
	(int) 22 => '<p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.',
	(int) 23 => '<p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.',
	(int) 24 => '<p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.',
	(int) 25 => '<p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.',
	(int) 26 => '<p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.',
	(int) 27 => '<p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.',
	(int) 28 => '<p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.',
	(int) 29 => '<p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.',
	(int) 30 => ''
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22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.

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	'title_for_layout' => 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '439244',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
			'authreffered' => '',
			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2003-03-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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			'pubs' => '2003(1)ALD(Cri)580; 2003(2)ALT(Cri)566; III(2003)BC345',
			'ratiodecidendi' => '',
			'respondent' => 'State of A.P. and anr.',
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			'circuit' => null
		)
	),
	'casename_url' => 'p-suryanarayana-vs-state-a-p-anr',
	'args' => array(
		(int) 0 => '439244',
		(int) 1 => 'p-suryanarayana-vs-state-a-p-anr'
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$title_for_layout = 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '439244',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
		'authreffered' => '',
		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'P.S. Sastry, Adv.',
		'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2003-03-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.C. Bhanu, J.',
		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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		'respondent' => 'State of A.P. and anr.',
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		'circuit' => null
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	(int) 0 => '439244',
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$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>K.C. Bhanu, J.',
	(int) 1 => '<p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.',
	(int) 2 => '<p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.',
	(int) 3 => '<p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.',
	(int) 4 => '<p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.',
	(int) 5 => '<p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.',
	(int) 6 => '<p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.',
	(int) 7 => '<p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.',
	(int) 8 => '<p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.',
	(int) 9 => '<p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.',
	(int) 10 => '<p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:',
	(int) 11 => '<p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'',
	(int) 12 => '<p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.',
	(int) 13 => '<p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:',
	(int) 14 => '<p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'',
	(int) 15 => '<p>12. In Ram Lal (supra), the Apex Court has held as under:',
	(int) 16 => '<p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.',
	(int) 17 => '<p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' ',
	(int) 18 => '<p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.',
	(int) 19 => '<p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.',
	(int) 20 => '<p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.',
	(int) 21 => '<p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.',
	(int) 22 => '<p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.',
	(int) 23 => '<p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.',
	(int) 24 => '<p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.',
	(int) 25 => '<p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.',
	(int) 26 => '<p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.',
	(int) 27 => '<p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.',
	(int) 28 => '<p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.',
	(int) 29 => '<p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.',
	(int) 30 => ''
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23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.

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	'title_for_layout' => 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '439244',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
			'authreffered' => '',
			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2003-03-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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		'id' => '439244',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
		'authreffered' => '',
		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'P.S. Sastry, Adv.',
		'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2003-03-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.C. Bhanu, J.',
		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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	(int) 0 => 'ORDER<p>K.C. Bhanu, J.',
	(int) 1 => '<p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.',
	(int) 2 => '<p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.',
	(int) 3 => '<p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.',
	(int) 4 => '<p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.',
	(int) 5 => '<p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.',
	(int) 6 => '<p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.',
	(int) 7 => '<p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.',
	(int) 8 => '<p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.',
	(int) 9 => '<p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.',
	(int) 10 => '<p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:',
	(int) 11 => '<p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'',
	(int) 12 => '<p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.',
	(int) 13 => '<p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:',
	(int) 14 => '<p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'',
	(int) 15 => '<p>12. In Ram Lal (supra), the Apex Court has held as under:',
	(int) 16 => '<p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.',
	(int) 17 => '<p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' ',
	(int) 18 => '<p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.',
	(int) 19 => '<p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.',
	(int) 20 => '<p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.',
	(int) 21 => '<p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.',
	(int) 22 => '<p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.',
	(int) 23 => '<p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.',
	(int) 24 => '<p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.',
	(int) 25 => '<p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.',
	(int) 26 => '<p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.',
	(int) 27 => '<p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.',
	(int) 28 => '<p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.',
	(int) 29 => '<p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.',
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24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.

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	'title_for_layout' => 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '439244',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
			'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
			'appellant' => 'P. Suryanarayana',
			'authreffered' => '',
			'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
			'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'P.S. Sastry, Adv.',
			'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2003-03-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.C. Bhanu, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.C. Bhanu, J.</p><p style="text-align: justify;">1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p style="text-align: justify;">2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p style="text-align: justify;">3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p style="text-align: justify;">4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p style="text-align: justify;">5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p style="text-align: justify;">6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p style="text-align: justify;">8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p style="text-align: justify;">9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p style="text-align: justify;">In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p style="text-align: justify;">'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p style="text-align: justify;">10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p style="text-align: justify;">11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p style="text-align: justify;">'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p style="text-align: justify;">12. In Ram Lal (supra), the Apex Court has held as under:</p><p style="text-align: justify;">'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p style="text-align: justify;"> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p style="text-align: justify;">13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p style="text-align: justify;">14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p style="text-align: justify;">15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p style="text-align: justify;">16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p style="text-align: justify;">17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p style="text-align: justify;">18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p style="text-align: justify;">19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p style="text-align: justify;">20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p style="text-align: justify;">21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p style="text-align: justify;">22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p style="text-align: justify;">23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p style="text-align: justify;">24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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$title_for_layout = 'P Suryanarayana Vs State of a P and anr - Citation 439244 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '439244',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 362 and 482; <a href="/act/50934/negotiable-instruments-act-1881-complete-act">Negotiable Instruments Act, 1881</a> - Sections 138 and 141',
		'appealno' => 'Crl. Petn. Nos. 1110 and 3303 to 3308 of 2002',
		'appellant' => 'P. Suryanarayana',
		'authreffered' => '',
		'casename' => 'P. Suryanarayana Vs. State of A.P. and anr.',
		'casenote' => 'Criminal - dishonour of cheque - Sections 362 and 482 of Criminal Procedure Code, 1973 and Sections 138 and 141 of Negotiable Instruments Act, 1881 - petition filed to quash proceedings initiated under Section 138 - whether matter can be referred to division bench in view of conflicting decision of Court on same point - Section 362 of Criminal Procedure Code restricts Criminal Court to review or alter its judgment - under guise of Section 482 Court cannot review alter or recall its Order because of express prohibition in Section 362 - matter not referred to division bench - petition liable to be dismissed.


 -  -  4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'P.S. Sastry, Adv.',
		'counseldef' => 'Public Prosecutor for the Respondent No. 1 and ;C. Kodanda Ram, Adv. for the Respondent No. 2',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2003-03-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.C. Bhanu, J.',
		'judgement' => 'ORDER<p>K.C. Bhanu, J.</p><p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.</p><p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.</p><p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.</p><p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.</p><p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.</p><p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.</p><p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.</p><p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.</p><p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.</p><p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:</p><p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'</p><p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.</p><p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:</p><p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'</p><p>12. In Ram Lal (supra), the Apex Court has held as under:</p><p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.</p><p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' </p><p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.</p><p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.</p><p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.</p><p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.</p><p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.</p><p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.</p><p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.</p><p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.</p><p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.</p><p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.</p><p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.</p><p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.</p>',
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	(int) 1 => '<p>1. The above petitions are filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in the criminal cases covered by the petitions pending on the file of the learned IV Metropolitan Magistrate, Hyderabad.',
	(int) 2 => '<p>2. As a common question of law is involved in all the petitions and as all the petitions are filed by the same accused, they are being disposed of by a common order.',
	(int) 3 => '<p>3. The de facto complainant filed several complaints before the learned IV Metropolitan Magistrate, Hyderabad, against the Managing Directors, Directors and Financial Controller, including the petitioner, who is one of the Directors of M/s. Renewable Energy Systems Ltd., (for short, 'RESL') under Section 138 of the Negotiable Instruments Act, hereinafter to be referred to as 'the Act' for the sake of brevity, alleging that it leased out equipment under a lease agreement, dated 10.3.1995 to the accused at quarterly rent of Rs. 16,35,960/-, that in pursuance of the agreement, RESL issued the cheques in question and the cheques were dishonoured with endorsement, 'exceeds the arrangement', and that thereafter the complainant issued a demand notice to the accused to pay the amount, but the accused did not pay the amount and hence they committed an offence punishable under Section 138 of the Act. The complaints were registered against the accused as aforesaid. One of the Directors, Sri P. Suryanarana filed the present petitions to quash the proceedings in the C.Cs. covered by the petitions.',
	(int) 4 => '<p>4. Under Section 138 of the Negotiable Instruments Act, in order to make a person liable, three conditions have to be satisfied, as per the proviso to that Section. They are : (1) The cheque is presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, (2) the payee or the holder-in-due course of the cheque, as the case may be, make a demand for payment of the amount of money by giving notice in writing to the drawer of the cheque within 15 days of receipt of the intimation by him from the Bank regarding the return of the cheque as unpaid, and (3) the drawer of such cheque fails to make payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of receipt of the said notice. The main enacting clause of Section 138 comes into play only if the above three conditions are fulfilled.',
	(int) 5 => '<p>5. The petitioner, who is one of the Directors of RESL contends that he is not the signatory of the cheques and is not a party to the lease agreement entered into between the complainant-company and RESL and, therefore, he is not liable for any liability of the accused-company.',
	(int) 6 => '<p>6. The petitioner, RESL, and one of its Managing Directors, Mr. T. Anjaneyulu earlier filed Crl. P. Nos. 3451 to 3457 of 2001 in this Court, to quash the proceedings in the same C.Cs., now sought to be quashed, inter alia on the ground that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act. This Court by an elaborate order, dated 26.9.2001, rejected the above ground and dismissed the petitions holding that once an offence was said to have been perpetrated, by looking at the provisions of Sections 138 and 141 of the Act, the contention that the cheques were replaced by a subsequent memorandum of understanding could not be countenanced.',
	(int) 7 => '<p>7. Learned Counsel for the petitioner raised two aspects. Firstly, the judgment rendered by a learned Single Judge of this Court in Crl.Ps. 3451 to 3457 of 2001, dated 26.9.2001, is per incuriam and this Court while exercising jurisdiction under Section 482, Cr.P.C., can review its order. Secondly subsequent to the order dated 26.9.2001, another learned Single Judge of this Court in Crl.P. No. 897/2001, which was filed by another Director of RESL, Mr. M. Durga Prasad, quashed the proceedings in C.C. No. 794/1997 in respect of Mr. Durga Prasad, on 4.12.2001, and, therefore, the matter may be referred to a Division Bench in view of the conflicting decisions of this Court on the same point.',
	(int) 8 => '<p>8. Petitioner is one of the petitioners in Crl.P. Nos. 3451 to 3457 to 2001, dated 26.9.2001. He cannot be permitted to re-agitate the same question, which was already decided by this Court on merits under Section 482 Cr.P.C.',
	(int) 9 => '<p>9. Normally the principle of law is that once a judgment is pronounced or an order is made the Court becomes functus officio (ceases to have control over the matter). Such judgment or order is final and cannot be altered or changed or varied or modified. In the absence of express or implied power, no Court can review an order passed by it. In civil law, review of judgment or order is called for only where a glaring omission, or blatant mistake has crept in earlier by judicial fallibility.',
	(int) 10 => '<p>In Civil Law under certain circumstances any person may apply for a review of judgment or order to the Court, which passed the decree or made the order. But such power is not given to a Criminal Court under the Code of Criminal Procedure. On the other hand, there is a glaring restriction on the part of the criminal Court to review or alter its judgment vide Section 362, Cr.P.C. which reads thus:',
	(int) 11 => '<p>'Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'',
	(int) 12 => '<p>10. Section 362, Cr.P.C. clearly says that once a judgment or final order disposing of the case is made, no Court can review or alter or modify its order or judgment, save as otherwise provided by the Code or any other law, except to correct a clerical or arithmetical error. The principle that has been incorporated in Section 362, Cr.P.C. is that when a matter is finally disposed of by a Court, such Court is functus officio in respect of that matter and, in the absence of direct statutory provision permitting alteration or review, can entertain fresh prayer for the same relief.',
	(int) 13 => '<p>11. On this aspect, it is pertinent to refer to two decisions of the Apex Court in State of Kerala v. M.M. Manikantan Nair, III (2001) ALT 680=II (2001) CCR 168=2001(1) ALD (CrI.) 798 and Harisingh Mann v. Harbhajan Singh Bajwa and Ors. (2000) 7 SLT 693: (2000) 4 CCR 188=2001 (1) ALD (Crl.) 33 . In State of Kerala (supra), it is held as under:',
	(int) 14 => '<p>'The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.'',
	(int) 15 => '<p>12. In Ram Lal (supra), the Apex Court has held as under:',
	(int) 16 => '<p>'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.',
	(int) 17 => '<p> Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain fresh prayer for the same relief unless the former order or final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.' ',
	(int) 18 => '<p>13. The above decisions make it clear that under the aid of Section 482, Cr.P.C. an order made or a judgment passed by this Court cannot be reviewed or altered or recalled. Therefore, the inherent power cannot be exercised for doing that which is specifically prohibited. The High Court has no power to review its judgment or final order by invoking its inherent jurisdiction.',
	(int) 19 => '<p>14. When the order, dated 26.9.2001, passed by this Court has become final, with the aid of or under the cloak of Section 482, Cr.P.C., it cannot be reviewed or altered or recalled. Therefore, the contention of the learned Counsel for the petitioner is only devoid of merit and untenable.',
	(int) 20 => '<p>15. Another contention of the learned Counsel for the petitioner is that the order of the learned Single Judge, dated 26.9.2001, is per incuriam in view of the decision in K.P.G. Nair v. Jindal Menthol India Ltd. : (2001)10SCC218 wherein Their Lordships of the Apex Court held that a perusal of the excerpts of the complaint therein showed that nowhere it was stated that on the date when the offence was alleged to have been committed, the appellant therein was in charge of or was responsible to the accused company for the conduct of its business and, since, from a perusal of Section 141 it was evident that in a case where a company committed offence under Section 138 then not only the company but also every person who at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, it followed that a person other than the company could be proceeded against under those provisions only if that person was in charge of and was responsible to the company for the conduct of its business.',
	(int) 21 => '<p>16. Learned Counsel for the 2nd respondent also relied upon a decision of a Full Bench of this Court in Y.V. Anjaneyulu v. I.T.O. : [1990]182ITR242(AP) , wherein, it is held that when a decision is rendered without noticing a binding precedent or inconsistent to a statutory provision, it is per incuriam and, therefore, loses its efficacy as precedent.',
	(int) 22 => '<p>17. Per incuriam means 'through inadvertence or through want of care'. A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of statute.',
	(int) 23 => '<p>18. Even assuming for a moment that the decision rendered by this Court on 26.9.2001 is per incuriam in view of the decision in K.P.G. Nair (supra), on that ground it cannot be said that the judgment passed by this Court on 26.9.2001 is illegal. Per incuriam applies to whole world but not inter se between the parties. Except the parties to the lis, it binds none.',
	(int) 24 => '<p>19. Petitioner was a party to the earlier petitions disposed of on 26.9.2001. Therefore, he cannot now turn round and say that the decision of this Court, dated 26.9.2001, is per incuriam in view of the decision of the Supreme Court in K.P.G. Nair (supra). For the sake of argument, even if it is assumed that the decision of this Court, dated 26.9.2001, is per incuriam, still under the guise of Section 482, Cr.P.C., this Court cannot review, alter or recall it, because there is an express prohibition in Section 362 of the Code from doing so, except to correct clerical or arithmetical error. Admittedly it is not a case of any clerical or arithmetical error of the order of this Court. In view of the foregoing discussion, the contention of the learned Counsel for the petitioner on this point cannot be accepted.',
	(int) 25 => '<p>20. Lastly, the ground on which the petitioner wants this Court to refer the matter to a Division Bench of this Court is the conflicting findings of the two learned Single Judges in two different orders in respect of the same point.',
	(int) 26 => '<p>21. The learned Single Judge in his order, dated 26.9.2001, held that the petitioners 2 and 3 therein were Managing Director and Director of the 1st petitioner company and under the circumstances, it could not be heard to say that they had nothing to do with conduct of the business of the company. The learned Single Judge also held that when the petitioners therein lost the first round of litigation, they instituted the second round of litigation seeking to quash the proceedings against them on the premise that there was no mention in the complaint attracting the essential ingredients of Sections 138 and 141 of the Act and such attitude on the part of the petitioners therein could not be encouraged. Another learned Single Judge in his order, dated 4.12.2001, held that the petitioner therein, who was one of the Directors of RESL, could not be prosecuted on the strength of vague and indefinite allegations in the complaint that being a Director of the Company he was responsible for the business and management of affairs of the company, and such vague and indefinite allegations did not constitute and gave rise to cause for filing a complaint for the offence under Section 138 of the Act.',
	(int) 27 => '<p>22. I am unable to. agree with the argument advanced by the learned Counsel for the petitioner that the matter be referred to a Division Bench in view of the above conflicting decisions, because the question as to the liability of a partner or a Director of a firm or company is no longer res integra in view of the decision in K.P.G. Nair (supra), wherein it is held that when the complaint does not show that the accused was incharge of and was responsible to the accused company for the conduct of its business, then the proceedings under Section 138 of the Act are liable to be quashed. To the same effect is another decision in Katta Sujatha v. Fertilisers and Chemicals Travancore Ltd. : (2002)7SCC655 , wherein it is held that if it is proved that the offence was committed with the consent or connivance or was attributable to any neglect on the part of the partner concerned or if he was incharge of and was responsible to the conduct of the firm, the partner is liable to be convicted.',
	(int) 28 => '<p>23. In view of the above two decisions, there is no need to refer the matter to a Division Bench.',
	(int) 29 => '<p>24. There have already been two rounds of litigations. Starting third round of litigation before this Court is nothing but abuse of process of the Court, having failed in the earlier two rounds of litigations. On the previous litigation, the grounds raised in the petition have been fully considered by this Court. The remedy, if any, available to the petitioner, is only to file a special leave petition before the Supreme Court against the order of this Court, dated 26.9.2001. In any view of the matter, the petitions arc liable to be dismissed, as there are no merits.',
	(int) 30 => ''
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