Shriniwas S/O Mulchand Ladniya Vs. Laxminarayan S/O Jainarayan Rathi and ors.

Decided On : Feb-11-2003

Court : Mumbai

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			'appealno' => 'Cri. Appln. Nos. 2040 and 2041 of 1998',
			'appellant' => 'Shriniwas S/O Mulchand Ladniya',
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			'casename' => 'Shriniwas S/O Mulchand Ladniya Vs. Laxminarayan S/O Jainarayan Rathi and ors.',
			'casenote' => '[A] Criminal Procedure Code, 1973 - Section 397(2) - Revision - Powers of Sessions Court - Order of Chief Judicial Magistrate directing issue of process - The expression 'interlocutory order' cannot be used in a restricted sense - Liberal construction of the provision - Order not purely interlocutory but intermediate or quasi-final - Revision against the order of issue of process maintainable.;On plain reading of the provision of law in Section 397(2) of the Criminal Procedure Code it would reveal that the revision against any interlocutory order passed in any appeal, enquiry or trial or other proceedings would not lie. But then in the present case it cannot be said that the order directing issue of process against respondent No. 1 was an interlocutory order.;Having regard to the observations of the Hon'ble Supreme Court in Rajendra Kumar AIR 1999 SC 1028, it is quite obvious that the expression 'interlocutory order' cannot be used in a restricted sense and it merely denotes orders of interim or temporary nature which do not decide or touch the important rights or liabilities of the parties. Similarly, the provisions of Sub-section (2) of Section 397 have to be liberally construed. In order to ensure complete fairness of the trial and the revisional powers of the High Court or Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi-final. In the present order, a direction of issuance of process cannot be held to be purely interlocutory and, therefore, the said order passed by the Magistrate being intermediate or quasi-final substantially affecting the important rights and liabilities of the parties, particularly of respondent No. 1, cannot be said to be purely interlocutory order in order to oust the jurisdiction of the Sessions Judge. Therefore, the contention of the Counsel for the applicant that the revision before the Sessions Judge was not maintainable is totally misconceived and cannot be accepted.;[B] Negotiable Instruments Act, 1881 - Section 138 - Indian Penal Code, 1860 - Sections 406-420 - Dishonour of cheque - Cheating - One of the accused not a party to the decree - Issue of process against him not correct and proper.;The decree passed in Misc. Judicial Case No. 178 of 1993 would show that the respondent No. 1 Laxminarayan Jainarayan Rathi was not a party to that proceedings in relation to the arbitration and on this count alone, it can be said that issuance of process against him for the offence punishable under Section 138 of the Negotiable Instruments Act and under Sections 406 and 420 of the Indian Penal Code was not correct and proper. -  -  1, contended that the Revision before the learned Sessions Judge was perfectly maintainable though the Revision was filed against the order passed by the Magistrate under Section 204 of the Criminal Procedure Code directing issue of process. Paliwal further contended that in such circumstances the impugned order passed by the learned Sessions Judge in both the criminal revisions is perfectly legal and sustainable in law. 10. On anxious consideration of the contentions canvassed by the learned counsel, I am of the considered view that the revision before the learned Additional Sessions Judge under Section 397(2) of the Code of Criminal Procedure was perfectly maintainable.',
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			'counselplain' => 'N.W. Kothari, Adv. holding for ;A.M. Ghare, Adv.',
			'counseldef' => 'V.K. Paliwal, Adv. for respondent No. 1 and ;Thakre, Additional Public Prosecutor    for respondent No. 7',
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			'decidedon' => '2003-02-11',
			'deposition' => 'Application dismissed',
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			'judgement' => '<p style="text-align: justify;">S.T. Kharche, J. </p><p style="text-align: justify;">1. Rule taken up for final hearing with the consent of the parties.</p><p style="text-align: justify;">Heard Mr. Kothari, learned Advocate holding for Mr. A.M. Ghare, counsel for applicants, Mr. Paliwal, learned counsel for respondent No. 1 and Mr. Thakre, learned Additional Public Prosecutor for respondent No. 7 in both the applications.</p><p style="text-align: justify;">2. These two applications involve common questions of law and facts and, therefore, are being disposed of by this common judgment.</p><p style="text-align: justify;">3. These applications have been filed for quashing and setting aside the order, dated 17th August, 1998, passed by learned Additional Sessions Judge in Criminal Revision Nos. 105 of 1997 and 106 of 1997, whereby he set aside the order passed by the Judicial Magistrate First Class directing issuance of process against the respondent No. 1 in Criminal Case No. 13043 of 1994 for the offences punishable under Section 138 of the Negotiable Instruments Act and. under Sections 406 and 420 of the Indian Penal Code.</p><p style="text-align: justify;">4. Mr. Kothari, learned Advocate, contended that the applicants have filed proceedings for recovery of certain amount from respondents 2 and 3 in person and also respondents 4 and 6 - Firms and respondent No. 5 Company, of which respondents 1 to 3 are partners or Directors respectively. For any award or a decree passed against the respondent Nos. 3 to 5, respondent Nos. 1 to 3 were jointly and severally responsible. In recovery proceedings vide Misc. Judicial Case No. 178 of 1993, an arbitration award was passed and the respondents had agreed to pay the amount of Rs. 2,50,000.00 by way of six instalments with a stipulation that in case of default of any two instalments, the applicants were at liberty to recover full amount due on the date of default along with interest at the rate of 18% per annum. Mr. Kothari contended that this Award was confirmed on 6-10-1994 by the Civil Judge (Senior Division) and it has culminated into a decree. He further contended that in Criminal Application No. 2040 of 1998, the respondent No. 2 Sau. Shakuntal Laxminarayan Rathi had issued a cheque of Rs. 25,000.00 drawn on Washim Urban Co-operative Bank, Branch at Akola, towards instalment. The said cheque was presented for encashment with the Bank of 31st May, 1994 and the cheque was returned by the Bank on the ground 'Account closed'. The applicant, therefore, served the notice of fifteen days under Section 138 of the Negotiable Instruments Act, which was served on the respondents on 14th June, 1994; but the respondents did not pay the said amount and hence the applicant was constrained to file private Criminal Complaint under Section 138 of the Negotiable Instruments Act and under Sections 406 and 420 of the Indian Penal Code. The said complaint was filed on 25th July, 1994 in the court of learned Chief Judicial Magistrate. The learned Magistrate issued process against the respondents. The respondent No. 1 being aggrieved by the order of issue of process, had filed Criminal Revision No. 105 of 1997 in the Court of Additional Sessions Judge. On 17th August, 1998, the said Criminal Revision was allowed and the order passed by the learned Magistrate for the issuance of process was set aside and quashed. It is this order that is under challenge in this application.</p><p style="text-align: justify;">5. Mr. Kothari further contended that in Criminal Application No. 2041 of 1998, the respondent No. 3 Harish Jainarayan Rathi had issued the cheque for amount of Rs. 50,000.00 on 31st January, 1994 and the said cheque was presented for encashment on 31st May, 1994, which was dishonoured on the ground 'Account closed.' Then the fifteen days notice under Section 138 of the Negotiable Instruments Act was served on the respondents on 14th June, 1994 and thereafter a private Criminal Complaint was filed against the respondents on 25th July, 1994, in which the learned Chief Judicial Magistrate passed the order directing issue of process on 7th September, 1996. Being aggrieved by this order, the respondent No. 1 had filed Criminal Revision No. 106 of 1997 in the Court of learned Second Additional Sessions Judge, who quashed the order of issue of process and allowed the said Revision. It is this order that has been challenged in this Criminal Revision Application No. 2041 of 1998.</p><p style="text-align: justify;">6. Mr. Kothari contended that the Revision before the learned Additional Sessions Judge was not maintainable because the order passed by the learned magistrate was under Section 204 of the Criminal Procedure Code, which was purely an interlocutory order. He contended that, therefore, the learned Additional Sessions Judge committed an error in entertaining the revision and the order passed by him is not sustainable in law.</p><p style="text-align: justify;">7. Mr. Kothari further contended that the respondent No. 1 - Laxminarayan Jainarayan Rathi was looking after the transactions of the firms - respondents 5 and 6 and he being a family member of the respondents 5 and 6 Firm and Company, he is jointly and severally liable along with others. Mr. Kothari further contended that in such circumstances the impugned order passed by the learned Sessions Judge is not sustainable in law.</p><p style="text-align: justify;">8. Mr. Paliwal, learned counsel for the respondent No. 1, contended that the Revision before the learned Sessions Judge was perfectly maintainable though the Revision was filed against the order passed by the Magistrate under Section 204 of the Criminal Procedure Code directing issue of process. In support of these submissions, he relied on the decision of the Apex Court in Rajendra Kumar Sitaram Pande and Ors. v. Uttam and Anr., : 1999CriLJ1620 .</p><p style="text-align: justify;">9. Mr. Paliwal further contended that the respondent No. 1 was shown in the array of accused in both the private criminal cases on the allegation that he was a family member of the co-accused and involved in the business transactions and as such he would be liable to make the payment of Rs. 2,50,000.00 by way of instalments and would be jointly and severally liable. The learned Sessions Judge considered this aspect of the matter and rightly held that no criminal liability could be fastened against the respondent No. 1 simply because he was a member of the family of the co-accused. He contended that actually the cheque was issued by respondent No. 2 for Rs. 25,000.00 in favour of the applicant on 31st May, 1994 and the respondent No. 3 had issued the cheque of Rs. 50,000.00 in favour of the applicant on 31st January, 1994 and these cheques are said to have been dishonoured. He contended that there is no material on record from which it can be said that the respondent No. 1 Laxminarayan Jainarayan Rathi was in any way concerned with those transactions. He contended that even this respondent No. 1 Laxminarayan was not a party to the decree that has been passed by the learned Civil Judge (Senior Division) against the defendants in Misc. Judicial Case No. 178 of 1993. Mr. Paliwal further contended that in such circumstances the impugned order passed by the learned Sessions Judge in both the criminal revisions is perfectly legal and sustainable in law.</p><p style="text-align: justify;">10. On anxious consideration of the contentions canvassed by the learned counsel, I am of the considered view that the revision before the learned Additional Sessions Judge under Section 397(2) of the Code of Criminal Procedure was perfectly maintainable. It is not disputed that the learned Magistrate passed the orders in both the private criminal complaints on 7th September, 1996 directing issue of process against all the accused for the offences punishable under Section 138 of the Negotiable Instruments Act and under Sections 406 and 420 of the Indian Penal Code. The Criminal Revisions were filed against this order, which were entertained by the learned Additional Sessions Judge who allowed the Revisions and quashed the order of issue of process so far as the respondent No. 1 - Laxminarayan Jainarayan Rathi was concerned. Thus, the question, that arises for consideration, is whether the Revisions were maintainable before the learned Sessions Judge.</p><p style="text-align: justify;">11. Section 397(2) of the Criminal Procedure contemplates as under:--</p><p style="text-align: justify;">'(2) The powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.' </p><p style="text-align: justify;">On plain reading of this provision of law, it would reveal that the revision against any interlocutory order passed in any appeal, enquiry or trial or other proceedings would not lie. But then in the present case it cannot be said that the order directing issue of process against respondent No. 1 was an interlocutory order. The question whether order directing issue of process is interlocutory has been considered by the Hon'ble Supreme Court in the case of Rajendra Kumar Sitaram Pande (cited supra), wherein the Hon'ble Supreme Court observed in para 6 as under :--</p><p style="text-align: justify;">'6. Discretion in the exercise of revisional jurisdiction should, therefore, be exercised within the four corners of Section 397, whenever there has been miscarriage of justice in whatever manner. Under Sub-section (2) of Section 397, there is a prohibition to exercise revisional jurisdiction against any interlocutory order so that inquiry or trial may proceed without any delay. But the expression 'interlocutory order' has not been defined in the Code. In Amar Nath v. State of Haryana : 1977CriLJ1891 , this Court has held that the expression 'interlocutory order' in Section 397(2) has been used in a restricted sense and not in a broad or artistic sense and merely denotes orders of purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties and any order which substantially affects the right of the parties cannot be said to be an 'interlocutory order'. In Madhu Limaye v. State of Maharashtra : 1978CriLJ165 , a three Judge Bench of this Court has held an order rejecting the plea of the accused on a point which when accepted will conclude the particular proceeding cannot be held to be an interlocutory order. In V.C. Shukla v. State : 1980CriLJ690 , this Court has held that the term 'interlocutory order' used in the Code of Criminal procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial and the revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi final. This being the position of law, it would not be appropriate to hold that an order directing issuance of process is purely interlocutory and, therefore, the bar under Sub-section (2) of Section 397 would apply. On the other hand, it must be held to be intermediate or quasi final and, therefore, the revisional jurisdiction under Section 397 could be exercised against the same. The High Court, therefore, was not justified in coming to the conclusion that the Sessions Judge had no jurisdiction to interfere with the order in view of the bar under Sub-section (2) of Section 397 of the Code.' </p><p style="text-align: justify;">12. Having regard to these observations, it is quite obvious that the expression 'interlocutory order' cannot be used in a restricted sense and it merely denotes orders of interim or temporary nature which do not decide or touch the important rights or liabilities of the parties. Similarly, the provisions of Sub-section (2) of Section 397 have to be liberally construed. In order to ensure complete fairness of the trial and the revisional powers of the High Court or Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi final. In the present order, a direction of issuance of process cannot be held to be purely interlocutory and, therefore, the said order passed by the magistrate being intermediate or quasi final substantially affecting the important rights and liabilities of the parties, particularly of respondent No. 1, cannot be said to be purely interlocutory order in order to oust the jurisdiction of the Sessions Judge. Therefore, I am of the considered view that the contention of the learned counsel for the applicant that the revision before the Sessions Judge was not maintainable is totally misconceived and cannot be accepted.</p><p style="text-align: justify;">13. The next point is whether the respondent No. 1 would be liable criminally for the dishonour of two cheques, one issued on 31-5-1994 by respondent No. 2 and the other issued by respondent No. 3 on 31-1-1994, and whether the respondent No. 1 would be criminally liable for the transactions which were the subject-matter of Misc. Judicial Case No. 178 of 1993. The decree passed in Misc. Judicial Case No. 178 of 1993 would show that the respondent No. 1 - Laxminarayan Jainarayan Rathi was not a party to that proceedings in relation to the arbitration and on this count alone, it can be said that issuance of process against him for the offence punishable under Section 138 of the Negotiable Instruments Act and under Sections 406 and 420 of the Indian Penal Code was not correct and proper. The learned Sessions Judge rightly considered this aspect of the matter and from the material that has been mentioned in the complaint itself, no conclusion can be reached that the respondent No. 1 would be criminally liable for the act of dishonour of cheque, or for any other transaction. He was just a family member of other co-accused for which he has been shown in the array of the accused in the complaints. Even in the verification taken down by the Magistrate, it was mentioned by the applicant that the respondent No. 1 was the family member and carries on the business in the names of the firms respondents 4 to 6. This statement of the applicant had no foundation because the respondent No. 1 was not at all a party to the decree that has been passed in Misc. Judicial Case No. 178 of 1993 and simply because he is a family member of the other co-accused who were the Partners or Directors of the Firms - respondents 4 to 6, no conclusion can be drawn that the criminal liability would be attracted to respondent No. 1. In that view of the matter, I am of the considered view that no case has been made out for interference with the orders passed by the learned Additional Sessions Judge, who quashed the issuance of process against respondent No. 1. Therefore, both the applications are devoid of any merit and liable to be dismissed. Both the applications are dismissed. Rule is discharged.</p><p style="text-align: justify;">Copy of the Judgment be retained in Criminal Application No. 2041 of 1998.</p>',
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		'id' => '347166',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 397(2)',
		'appealno' => 'Cri. Appln. Nos. 2040 and 2041 of 1998',
		'appellant' => 'Shriniwas S/O Mulchand Ladniya',
		'authreffered' => '',
		'casename' => 'Shriniwas S/O Mulchand Ladniya Vs. Laxminarayan S/O Jainarayan Rathi and ors.',
		'casenote' => '[A] Criminal Procedure Code, 1973 - Section 397(2) - Revision - Powers of Sessions Court - Order of Chief Judicial Magistrate directing issue of process - The expression 'interlocutory order' cannot be used in a restricted sense - Liberal construction of the provision - Order not purely interlocutory but intermediate or quasi-final - Revision against the order of issue of process maintainable.;On plain reading of the provision of law in Section 397(2) of the Criminal Procedure Code it would reveal that the revision against any interlocutory order passed in any appeal, enquiry or trial or other proceedings would not lie. But then in the present case it cannot be said that the order directing issue of process against respondent No. 1 was an interlocutory order.;Having regard to the observations of the Hon'ble Supreme Court in Rajendra Kumar AIR 1999 SC 1028, it is quite obvious that the expression 'interlocutory order' cannot be used in a restricted sense and it merely denotes orders of interim or temporary nature which do not decide or touch the important rights or liabilities of the parties. Similarly, the provisions of Sub-section (2) of Section 397 have to be liberally construed. In order to ensure complete fairness of the trial and the revisional powers of the High Court or Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi-final. In the present order, a direction of issuance of process cannot be held to be purely interlocutory and, therefore, the said order passed by the Magistrate being intermediate or quasi-final substantially affecting the important rights and liabilities of the parties, particularly of respondent No. 1, cannot be said to be purely interlocutory order in order to oust the jurisdiction of the Sessions Judge. Therefore, the contention of the Counsel for the applicant that the revision before the Sessions Judge was not maintainable is totally misconceived and cannot be accepted.;[B] Negotiable Instruments Act, 1881 - Section 138 - Indian Penal Code, 1860 - Sections 406-420 - Dishonour of cheque - Cheating - One of the accused not a party to the decree - Issue of process against him not correct and proper.;The decree passed in Misc. Judicial Case No. 178 of 1993 would show that the respondent No. 1 Laxminarayan Jainarayan Rathi was not a party to that proceedings in relation to the arbitration and on this count alone, it can be said that issuance of process against him for the offence punishable under Section 138 of the Negotiable Instruments Act and under Sections 406 and 420 of the Indian Penal Code was not correct and proper. -  -  1, contended that the Revision before the learned Sessions Judge was perfectly maintainable though the Revision was filed against the order passed by the Magistrate under Section 204 of the Criminal Procedure Code directing issue of process. Paliwal further contended that in such circumstances the impugned order passed by the learned Sessions Judge in both the criminal revisions is perfectly legal and sustainable in law. 10. On anxious consideration of the contentions canvassed by the learned counsel, I am of the considered view that the revision before the learned Additional Sessions Judge under Section 397(2) of the Code of Criminal Procedure was perfectly maintainable.',
		'caseanalysis' => null,
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		'counselplain' => 'N.W. Kothari, Adv. holding for ;A.M. Ghare, Adv.',
		'counseldef' => 'V.K. Paliwal, Adv. for respondent No. 1 and ;Thakre, Additional Public Prosecutor    for respondent No. 7',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '2003-02-11',
		'deposition' => 'Application dismissed',
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		'judge' => 'S.T. Kharche, J.',
		'judgement' => '<p style="text-align: justify;">S.T. Kharche, J. </p><p style="text-align: justify;">1. Rule taken up for final hearing with the consent of the parties.</p><p style="text-align: justify;">Heard Mr. Kothari, learned Advocate holding for Mr. A.M. Ghare, counsel for applicants, Mr. Paliwal, learned counsel for respondent No. 1 and Mr. Thakre, learned Additional Public Prosecutor for respondent No. 7 in both the applications.</p><p style="text-align: justify;">2. These two applications involve common questions of law and facts and, therefore, are being disposed of by this common judgment.</p><p style="text-align: justify;">3. These applications have been filed for quashing and setting aside the order, dated 17th August, 1998, passed by learned Additional Sessions Judge in Criminal Revision Nos. 105 of 1997 and 106 of 1997, whereby he set aside the order passed by the Judicial Magistrate First Class directing issuance of process against the respondent No. 1 in Criminal Case No. 13043 of 1994 for the offences punishable under Section 138 of the Negotiable Instruments Act and. under Sections 406 and 420 of the Indian Penal Code.</p><p style="text-align: justify;">4. Mr. Kothari, learned Advocate, contended that the applicants have filed proceedings for recovery of certain amount from respondents 2 and 3 in person and also respondents 4 and 6 - Firms and respondent No. 5 Company, of which respondents 1 to 3 are partners or Directors respectively. For any award or a decree passed against the respondent Nos. 3 to 5, respondent Nos. 1 to 3 were jointly and severally responsible. In recovery proceedings vide Misc. Judicial Case No. 178 of 1993, an arbitration award was passed and the respondents had agreed to pay the amount of Rs. 2,50,000.00 by way of six instalments with a stipulation that in case of default of any two instalments, the applicants were at liberty to recover full amount due on the date of default along with interest at the rate of 18% per annum. Mr. Kothari contended that this Award was confirmed on 6-10-1994 by the Civil Judge (Senior Division) and it has culminated into a decree. He further contended that in Criminal Application No. 2040 of 1998, the respondent No. 2 Sau. Shakuntal Laxminarayan Rathi had issued a cheque of Rs. 25,000.00 drawn on Washim Urban Co-operative Bank, Branch at Akola, towards instalment. The said cheque was presented for encashment with the Bank of 31st May, 1994 and the cheque was returned by the Bank on the ground 'Account closed'. The applicant, therefore, served the notice of fifteen days under Section 138 of the Negotiable Instruments Act, which was served on the respondents on 14th June, 1994; but the respondents did not pay the said amount and hence the applicant was constrained to file private Criminal Complaint under Section 138 of the Negotiable Instruments Act and under Sections 406 and 420 of the Indian Penal Code. The said complaint was filed on 25th July, 1994 in the court of learned Chief Judicial Magistrate. The learned Magistrate issued process against the respondents. The respondent No. 1 being aggrieved by the order of issue of process, had filed Criminal Revision No. 105 of 1997 in the Court of Additional Sessions Judge. On 17th August, 1998, the said Criminal Revision was allowed and the order passed by the learned Magistrate for the issuance of process was set aside and quashed. It is this order that is under challenge in this application.</p><p style="text-align: justify;">5. Mr. Kothari further contended that in Criminal Application No. 2041 of 1998, the respondent No. 3 Harish Jainarayan Rathi had issued the cheque for amount of Rs. 50,000.00 on 31st January, 1994 and the said cheque was presented for encashment on 31st May, 1994, which was dishonoured on the ground 'Account closed.' Then the fifteen days notice under Section 138 of the Negotiable Instruments Act was served on the respondents on 14th June, 1994 and thereafter a private Criminal Complaint was filed against the respondents on 25th July, 1994, in which the learned Chief Judicial Magistrate passed the order directing issue of process on 7th September, 1996. Being aggrieved by this order, the respondent No. 1 had filed Criminal Revision No. 106 of 1997 in the Court of learned Second Additional Sessions Judge, who quashed the order of issue of process and allowed the said Revision. It is this order that has been challenged in this Criminal Revision Application No. 2041 of 1998.</p><p style="text-align: justify;">6. Mr. Kothari contended that the Revision before the learned Additional Sessions Judge was not maintainable because the order passed by the learned magistrate was under Section 204 of the Criminal Procedure Code, which was purely an interlocutory order. He contended that, therefore, the learned Additional Sessions Judge committed an error in entertaining the revision and the order passed by him is not sustainable in law.</p><p style="text-align: justify;">7. Mr. Kothari further contended that the respondent No. 1 - Laxminarayan Jainarayan Rathi was looking after the transactions of the firms - respondents 5 and 6 and he being a family member of the respondents 5 and 6 Firm and Company, he is jointly and severally liable along with others. Mr. Kothari further contended that in such circumstances the impugned order passed by the learned Sessions Judge is not sustainable in law.</p><p style="text-align: justify;">8. Mr. Paliwal, learned counsel for the respondent No. 1, contended that the Revision before the learned Sessions Judge was perfectly maintainable though the Revision was filed against the order passed by the Magistrate under Section 204 of the Criminal Procedure Code directing issue of process. In support of these submissions, he relied on the decision of the Apex Court in Rajendra Kumar Sitaram Pande and Ors. v. Uttam and Anr., : 1999CriLJ1620 .</p><p style="text-align: justify;">9. Mr. Paliwal further contended that the respondent No. 1 was shown in the array of accused in both the private criminal cases on the allegation that he was a family member of the co-accused and involved in the business transactions and as such he would be liable to make the payment of Rs. 2,50,000.00 by way of instalments and would be jointly and severally liable. The learned Sessions Judge considered this aspect of the matter and rightly held that no criminal liability could be fastened against the respondent No. 1 simply because he was a member of the family of the co-accused. He contended that actually the cheque was issued by respondent No. 2 for Rs. 25,000.00 in favour of the applicant on 31st May, 1994 and the respondent No. 3 had issued the cheque of Rs. 50,000.00 in favour of the applicant on 31st January, 1994 and these cheques are said to have been dishonoured. He contended that there is no material on record from which it can be said that the respondent No. 1 Laxminarayan Jainarayan Rathi was in any way concerned with those transactions. He contended that even this respondent No. 1 Laxminarayan was not a party to the decree that has been passed by the learned Civil Judge (Senior Division) against the defendants in Misc. Judicial Case No. 178 of 1993. Mr. Paliwal further contended that in such circumstances the impugned order passed by the learned Sessions Judge in both the criminal revisions is perfectly legal and sustainable in law.</p><p style="text-align: justify;">10. On anxious consideration of the contentions canvassed by the learned counsel, I am of the considered view that the revision before the learned Additional Sessions Judge under Section 397(2) of the Code of Criminal Procedure was perfectly maintainable. It is not disputed that the learned Magistrate passed the orders in both the private criminal complaints on 7th September, 1996 directing issue of process against all the accused for the offences punishable under Section 138 of the Negotiable Instruments Act and under Sections 406 and 420 of the Indian Penal Code. The Criminal Revisions were filed against this order, which were entertained by the learned Additional Sessions Judge who allowed the Revisions and quashed the order of issue of process so far as the respondent No. 1 - Laxminarayan Jainarayan Rathi was concerned. Thus, the question, that arises for consideration, is whether the Revisions were maintainable before the learned Sessions Judge.</p><p style="text-align: justify;">11. Section 397(2) of the Criminal Procedure contemplates as under:--</p><p style="text-align: justify;">'(2) The powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.' </p><p style="text-align: justify;">On plain reading of this provision of law, it would reveal that the revision against any interlocutory order passed in any appeal, enquiry or trial or other proceedings would not lie. But then in the present case it cannot be said that the order directing issue of process against respondent No. 1 was an interlocutory order. The question whether order directing issue of process is interlocutory has been considered by the Hon'ble Supreme Court in the case of Rajendra Kumar Sitaram Pande (cited supra), wherein the Hon'ble Supreme Court observed in para 6 as under :--</p><p style="text-align: justify;">'6. Discretion in the exercise of revisional jurisdiction should, therefore, be exercised within the four corners of Section 397, whenever there has been miscarriage of justice in whatever manner. Under Sub-section (2) of Section 397, there is a prohibition to exercise revisional jurisdiction against any interlocutory order so that inquiry or trial may proceed without any delay. But the expression 'interlocutory order' has not been defined in the Code. In Amar Nath v. State of Haryana : 1977CriLJ1891 , this Court has held that the expression 'interlocutory order' in Section 397(2) has been used in a restricted sense and not in a broad or artistic sense and merely denotes orders of purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties and any order which substantially affects the right of the parties cannot be said to be an 'interlocutory order'. In Madhu Limaye v. State of Maharashtra : 1978CriLJ165 , a three Judge Bench of this Court has held an order rejecting the plea of the accused on a point which when accepted will conclude the particular proceeding cannot be held to be an interlocutory order. In V.C. Shukla v. State : 1980CriLJ690 , this Court has held that the term 'interlocutory order' used in the Code of Criminal procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial and the revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi final. This being the position of law, it would not be appropriate to hold that an order directing issuance of process is purely interlocutory and, therefore, the bar under Sub-section (2) of Section 397 would apply. On the other hand, it must be held to be intermediate or quasi final and, therefore, the revisional jurisdiction under Section 397 could be exercised against the same. The High Court, therefore, was not justified in coming to the conclusion that the Sessions Judge had no jurisdiction to interfere with the order in view of the bar under Sub-section (2) of Section 397 of the Code.' </p><p style="text-align: justify;">12. Having regard to these observations, it is quite obvious that the expression 'interlocutory order' cannot be used in a restricted sense and it merely denotes orders of interim or temporary nature which do not decide or touch the important rights or liabilities of the parties. Similarly, the provisions of Sub-section (2) of Section 397 have to be liberally construed. In order to ensure complete fairness of the trial and the revisional powers of the High Court or Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi final. In the present order, a direction of issuance of process cannot be held to be purely interlocutory and, therefore, the said order passed by the magistrate being intermediate or quasi final substantially affecting the important rights and liabilities of the parties, particularly of respondent No. 1, cannot be said to be purely interlocutory order in order to oust the jurisdiction of the Sessions Judge. Therefore, I am of the considered view that the contention of the learned counsel for the applicant that the revision before the Sessions Judge was not maintainable is totally misconceived and cannot be accepted.</p><p style="text-align: justify;">13. The next point is whether the respondent No. 1 would be liable criminally for the dishonour of two cheques, one issued on 31-5-1994 by respondent No. 2 and the other issued by respondent No. 3 on 31-1-1994, and whether the respondent No. 1 would be criminally liable for the transactions which were the subject-matter of Misc. Judicial Case No. 178 of 1993. The decree passed in Misc. Judicial Case No. 178 of 1993 would show that the respondent No. 1 - Laxminarayan Jainarayan Rathi was not a party to that proceedings in relation to the arbitration and on this count alone, it can be said that issuance of process against him for the offence punishable under Section 138 of the Negotiable Instruments Act and under Sections 406 and 420 of the Indian Penal Code was not correct and proper. The learned Sessions Judge rightly considered this aspect of the matter and from the material that has been mentioned in the complaint itself, no conclusion can be reached that the respondent No. 1 would be criminally liable for the act of dishonour of cheque, or for any other transaction. He was just a family member of other co-accused for which he has been shown in the array of the accused in the complaints. Even in the verification taken down by the Magistrate, it was mentioned by the applicant that the respondent No. 1 was the family member and carries on the business in the names of the firms respondents 4 to 6. This statement of the applicant had no foundation because the respondent No. 1 was not at all a party to the decree that has been passed in Misc. Judicial Case No. 178 of 1993 and simply because he is a family member of the other co-accused who were the Partners or Directors of the Firms - respondents 4 to 6, no conclusion can be drawn that the criminal liability would be attracted to respondent No. 1. In that view of the matter, I am of the considered view that no case has been made out for interference with the orders passed by the learned Additional Sessions Judge, who quashed the issuance of process against respondent No. 1. Therefore, both the applications are devoid of any merit and liable to be dismissed. Both the applications are dismissed. Rule is discharged.</p><p style="text-align: justify;">Copy of the Judgment be retained in Criminal Application No. 2041 of 1998.</p>',
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		'Judgement' => array(
			'id' => '347166',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 397(2)',
			'appealno' => 'Cri. Appln. Nos. 2040 and 2041 of 1998',
			'appellant' => 'Shriniwas S/O Mulchand Ladniya',
			'authreffered' => '',
			'casename' => 'Shriniwas S/O Mulchand Ladniya Vs. Laxminarayan S/O Jainarayan Rathi and ors.',
			'casenote' => '[A] Criminal Procedure Code, 1973 - Section 397(2) - Revision - Powers of Sessions Court - Order of Chief Judicial Magistrate directing issue of process - The expression 'interlocutory order' cannot be used in a restricted sense - Liberal construction of the provision - Order not purely interlocutory but intermediate or quasi-final - Revision against the order of issue of process maintainable.;On plain reading of the provision of law in Section 397(2) of the Criminal Procedure Code it would reveal that the revision against any interlocutory order passed in any appeal, enquiry or trial or other proceedings would not lie. But then in the present case it cannot be said that the order directing issue of process against respondent No. 1 was an interlocutory order.;Having regard to the observations of the Hon'ble Supreme Court in Rajendra Kumar AIR 1999 SC 1028, it is quite obvious that the expression 'interlocutory order' cannot be used in a restricted sense and it merely denotes orders of interim or temporary nature which do not decide or touch the important rights or liabilities of the parties. Similarly, the provisions of Sub-section (2) of Section 397 have to be liberally construed. In order to ensure complete fairness of the trial and the revisional powers of the High Court or Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi-final. In the present order, a direction of issuance of process cannot be held to be purely interlocutory and, therefore, the said order passed by the Magistrate being intermediate or quasi-final substantially affecting the important rights and liabilities of the parties, particularly of respondent No. 1, cannot be said to be purely interlocutory order in order to oust the jurisdiction of the Sessions Judge. Therefore, the contention of the Counsel for the applicant that the revision before the Sessions Judge was not maintainable is totally misconceived and cannot be accepted.;[B] Negotiable Instruments Act, 1881 - Section 138 - Indian Penal Code, 1860 - Sections 406-420 - Dishonour of cheque - Cheating - One of the accused not a party to the decree - Issue of process against him not correct and proper.;The decree passed in Misc. Judicial Case No. 178 of 1993 would show that the respondent No. 1 Laxminarayan Jainarayan Rathi was not a party to that proceedings in relation to the arbitration and on this count alone, it can be said that issuance of process against him for the offence punishable under Section 138 of the Negotiable Instruments Act and under Sections 406 and 420 of the Indian Penal Code was not correct and proper. -  -  1, contended that the Revision before the learned Sessions Judge was perfectly maintainable though the Revision was filed against the order passed by the Magistrate under Section 204 of the Criminal Procedure Code directing issue of process. Paliwal further contended that in such circumstances the impugned order passed by the learned Sessions Judge in both the criminal revisions is perfectly legal and sustainable in law. 10. On anxious consideration of the contentions canvassed by the learned counsel, I am of the considered view that the revision before the learned Additional Sessions Judge under Section 397(2) of the Code of Criminal Procedure was perfectly maintainable.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'N.W. Kothari, Adv. holding for ;A.M. Ghare, Adv.',
			'counseldef' => 'V.K. Paliwal, Adv. for respondent No. 1 and ;Thakre, Additional Public Prosecutor    for respondent No. 7',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '2003-02-11',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.T. Kharche, J.',
			'judgement' => '<p style="text-align: justify;">S.T. Kharche, J. </p><p style="text-align: justify;">1. Rule taken up for final hearing with the consent of the parties.</p><p style="text-align: justify;">Heard Mr. Kothari, learned Advocate holding for Mr. A.M. Ghare, counsel for applicants, Mr. Paliwal, learned counsel for respondent No. 1 and Mr. Thakre, learned Additional Public Prosecutor for respondent No. 7 in both the applications.</p><p style="text-align: justify;">2. These two applications involve common questions of law and facts and, therefore, are being disposed of by this common judgment.</p><p style="text-align: justify;">3. These applications have been filed for quashing and setting aside the order, dated 17th August, 1998, passed by learned Additional Sessions Judge in Criminal Revision Nos. 105 of 1997 and 106 of 1997, whereby he set aside the order passed by the Judicial Magistrate First Class directing issuance of process against the respondent No. 1 in Criminal Case No. 13043 of 1994 for the offences punishable under Section 138 of the Negotiable Instruments Act and. under Sections 406 and 420 of the Indian Penal Code.</p><p style="text-align: justify;">4. Mr. Kothari, learned Advocate, contended that the applicants have filed proceedings for recovery of certain amount from respondents 2 and 3 in person and also respondents 4 and 6 - Firms and respondent No. 5 Company, of which respondents 1 to 3 are partners or Directors respectively. For any award or a decree passed against the respondent Nos. 3 to 5, respondent Nos. 1 to 3 were jointly and severally responsible. In recovery proceedings vide Misc. Judicial Case No. 178 of 1993, an arbitration award was passed and the respondents had agreed to pay the amount of Rs. 2,50,000.00 by way of six instalments with a stipulation that in case of default of any two instalments, the applicants were at liberty to recover full amount due on the date of default along with interest at the rate of 18% per annum. Mr. Kothari contended that this Award was confirmed on 6-10-1994 by the Civil Judge (Senior Division) and it has culminated into a decree. He further contended that in Criminal Application No. 2040 of 1998, the respondent No. 2 Sau. Shakuntal Laxminarayan Rathi had issued a cheque of Rs. 25,000.00 drawn on Washim Urban Co-operative Bank, Branch at Akola, towards instalment. The said cheque was presented for encashment with the Bank of 31st May, 1994 and the cheque was returned by the Bank on the ground 'Account closed'. The applicant, therefore, served the notice of fifteen days under Section 138 of the Negotiable Instruments Act, which was served on the respondents on 14th June, 1994; but the respondents did not pay the said amount and hence the applicant was constrained to file private Criminal Complaint under Section 138 of the Negotiable Instruments Act and under Sections 406 and 420 of the Indian Penal Code. The said complaint was filed on 25th July, 1994 in the court of learned Chief Judicial Magistrate. The learned Magistrate issued process against the respondents. The respondent No. 1 being aggrieved by the order of issue of process, had filed Criminal Revision No. 105 of 1997 in the Court of Additional Sessions Judge. On 17th August, 1998, the said Criminal Revision was allowed and the order passed by the learned Magistrate for the issuance of process was set aside and quashed. It is this order that is under challenge in this application.</p><p style="text-align: justify;">5. Mr. Kothari further contended that in Criminal Application No. 2041 of 1998, the respondent No. 3 Harish Jainarayan Rathi had issued the cheque for amount of Rs. 50,000.00 on 31st January, 1994 and the said cheque was presented for encashment on 31st May, 1994, which was dishonoured on the ground 'Account closed.' Then the fifteen days notice under Section 138 of the Negotiable Instruments Act was served on the respondents on 14th June, 1994 and thereafter a private Criminal Complaint was filed against the respondents on 25th July, 1994, in which the learned Chief Judicial Magistrate passed the order directing issue of process on 7th September, 1996. Being aggrieved by this order, the respondent No. 1 had filed Criminal Revision No. 106 of 1997 in the Court of learned Second Additional Sessions Judge, who quashed the order of issue of process and allowed the said Revision. It is this order that has been challenged in this Criminal Revision Application No. 2041 of 1998.</p><p style="text-align: justify;">6. Mr. Kothari contended that the Revision before the learned Additional Sessions Judge was not maintainable because the order passed by the learned magistrate was under Section 204 of the Criminal Procedure Code, which was purely an interlocutory order. He contended that, therefore, the learned Additional Sessions Judge committed an error in entertaining the revision and the order passed by him is not sustainable in law.</p><p style="text-align: justify;">7. Mr. Kothari further contended that the respondent No. 1 - Laxminarayan Jainarayan Rathi was looking after the transactions of the firms - respondents 5 and 6 and he being a family member of the respondents 5 and 6 Firm and Company, he is jointly and severally liable along with others. Mr. Kothari further contended that in such circumstances the impugned order passed by the learned Sessions Judge is not sustainable in law.</p><p style="text-align: justify;">8. Mr. Paliwal, learned counsel for the respondent No. 1, contended that the Revision before the learned Sessions Judge was perfectly maintainable though the Revision was filed against the order passed by the Magistrate under Section 204 of the Criminal Procedure Code directing issue of process. In support of these submissions, he relied on the decision of the Apex Court in Rajendra Kumar Sitaram Pande and Ors. v. Uttam and Anr., : 1999CriLJ1620 .</p><p style="text-align: justify;">9. Mr. Paliwal further contended that the respondent No. 1 was shown in the array of accused in both the private criminal cases on the allegation that he was a family member of the co-accused and involved in the business transactions and as such he would be liable to make the payment of Rs. 2,50,000.00 by way of instalments and would be jointly and severally liable. The learned Sessions Judge considered this aspect of the matter and rightly held that no criminal liability could be fastened against the respondent No. 1 simply because he was a member of the family of the co-accused. He contended that actually the cheque was issued by respondent No. 2 for Rs. 25,000.00 in favour of the applicant on 31st May, 1994 and the respondent No. 3 had issued the cheque of Rs. 50,000.00 in favour of the applicant on 31st January, 1994 and these cheques are said to have been dishonoured. He contended that there is no material on record from which it can be said that the respondent No. 1 Laxminarayan Jainarayan Rathi was in any way concerned with those transactions. He contended that even this respondent No. 1 Laxminarayan was not a party to the decree that has been passed by the learned Civil Judge (Senior Division) against the defendants in Misc. Judicial Case No. 178 of 1993. Mr. Paliwal further contended that in such circumstances the impugned order passed by the learned Sessions Judge in both the criminal revisions is perfectly legal and sustainable in law.</p><p style="text-align: justify;">10. On anxious consideration of the contentions canvassed by the learned counsel, I am of the considered view that the revision before the learned Additional Sessions Judge under Section 397(2) of the Code of Criminal Procedure was perfectly maintainable. It is not disputed that the learned Magistrate passed the orders in both the private criminal complaints on 7th September, 1996 directing issue of process against all the accused for the offences punishable under Section 138 of the Negotiable Instruments Act and under Sections 406 and 420 of the Indian Penal Code. The Criminal Revisions were filed against this order, which were entertained by the learned Additional Sessions Judge who allowed the Revisions and quashed the order of issue of process so far as the respondent No. 1 - Laxminarayan Jainarayan Rathi was concerned. Thus, the question, that arises for consideration, is whether the Revisions were maintainable before the learned Sessions Judge.</p><p style="text-align: justify;">11. Section 397(2) of the Criminal Procedure contemplates as under:--</p><p style="text-align: justify;">'(2) The powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.' </p><p style="text-align: justify;">On plain reading of this provision of law, it would reveal that the revision against any interlocutory order passed in any appeal, enquiry or trial or other proceedings would not lie. But then in the present case it cannot be said that the order directing issue of process against respondent No. 1 was an interlocutory order. The question whether order directing issue of process is interlocutory has been considered by the Hon'ble Supreme Court in the case of Rajendra Kumar Sitaram Pande (cited supra), wherein the Hon'ble Supreme Court observed in para 6 as under :--</p><p style="text-align: justify;">'6. Discretion in the exercise of revisional jurisdiction should, therefore, be exercised within the four corners of Section 397, whenever there has been miscarriage of justice in whatever manner. Under Sub-section (2) of Section 397, there is a prohibition to exercise revisional jurisdiction against any interlocutory order so that inquiry or trial may proceed without any delay. But the expression 'interlocutory order' has not been defined in the Code. In Amar Nath v. State of Haryana : 1977CriLJ1891 , this Court has held that the expression 'interlocutory order' in Section 397(2) has been used in a restricted sense and not in a broad or artistic sense and merely denotes orders of purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties and any order which substantially affects the right of the parties cannot be said to be an 'interlocutory order'. In Madhu Limaye v. State of Maharashtra : 1978CriLJ165 , a three Judge Bench of this Court has held an order rejecting the plea of the accused on a point which when accepted will conclude the particular proceeding cannot be held to be an interlocutory order. In V.C. Shukla v. State : 1980CriLJ690 , this Court has held that the term 'interlocutory order' used in the Code of Criminal procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial and the revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi final. This being the position of law, it would not be appropriate to hold that an order directing issuance of process is purely interlocutory and, therefore, the bar under Sub-section (2) of Section 397 would apply. On the other hand, it must be held to be intermediate or quasi final and, therefore, the revisional jurisdiction under Section 397 could be exercised against the same. The High Court, therefore, was not justified in coming to the conclusion that the Sessions Judge had no jurisdiction to interfere with the order in view of the bar under Sub-section (2) of Section 397 of the Code.' </p><p style="text-align: justify;">12. Having regard to these observations, it is quite obvious that the expression 'interlocutory order' cannot be used in a restricted sense and it merely denotes orders of interim or temporary nature which do not decide or touch the important rights or liabilities of the parties. Similarly, the provisions of Sub-section (2) of Section 397 have to be liberally construed. In order to ensure complete fairness of the trial and the revisional powers of the High Court or Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi final. In the present order, a direction of issuance of process cannot be held to be purely interlocutory and, therefore, the said order passed by the magistrate being intermediate or quasi final substantially affecting the important rights and liabilities of the parties, particularly of respondent No. 1, cannot be said to be purely interlocutory order in order to oust the jurisdiction of the Sessions Judge. Therefore, I am of the considered view that the contention of the learned counsel for the applicant that the revision before the Sessions Judge was not maintainable is totally misconceived and cannot be accepted.</p><p style="text-align: justify;">13. The next point is whether the respondent No. 1 would be liable criminally for the dishonour of two cheques, one issued on 31-5-1994 by respondent No. 2 and the other issued by respondent No. 3 on 31-1-1994, and whether the respondent No. 1 would be criminally liable for the transactions which were the subject-matter of Misc. Judicial Case No. 178 of 1993. The decree passed in Misc. Judicial Case No. 178 of 1993 would show that the respondent No. 1 - Laxminarayan Jainarayan Rathi was not a party to that proceedings in relation to the arbitration and on this count alone, it can be said that issuance of process against him for the offence punishable under Section 138 of the Negotiable Instruments Act and under Sections 406 and 420 of the Indian Penal Code was not correct and proper. The learned Sessions Judge rightly considered this aspect of the matter and from the material that has been mentioned in the complaint itself, no conclusion can be reached that the respondent No. 1 would be criminally liable for the act of dishonour of cheque, or for any other transaction. He was just a family member of other co-accused for which he has been shown in the array of the accused in the complaints. Even in the verification taken down by the Magistrate, it was mentioned by the applicant that the respondent No. 1 was the family member and carries on the business in the names of the firms respondents 4 to 6. This statement of the applicant had no foundation because the respondent No. 1 was not at all a party to the decree that has been passed in Misc. Judicial Case No. 178 of 1993 and simply because he is a family member of the other co-accused who were the Partners or Directors of the Firms - respondents 4 to 6, no conclusion can be drawn that the criminal liability would be attracted to respondent No. 1. In that view of the matter, I am of the considered view that no case has been made out for interference with the orders passed by the learned Additional Sessions Judge, who quashed the issuance of process against respondent No. 1. Therefore, both the applications are devoid of any merit and liable to be dismissed. Both the applications are dismissed. Rule is discharged.</p><p style="text-align: justify;">Copy of the Judgment be retained in Criminal Application No. 2041 of 1998.</p>',
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			'prhistory' => '',
			'pubs' => '2003(2)ALD(Cri)93; I(2005)BC203; 2003BomCR(Cri)1469; 2003CriLJ3795; 2003(2)MhLj813',
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			'respondent' => 'Laxminarayan S/O Jainarayan Rathi and ors.',
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$title_for_layout = 'Shriniwas S/O Mulchand Ladniya Vs. Laxminarayan S/O Jainarayan Rathi and ors. Semantic Analysis'
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		'id' => '347166',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 397(2)',
		'appealno' => 'Cri. Appln. Nos. 2040 and 2041 of 1998',
		'appellant' => 'Shriniwas S/O Mulchand Ladniya',
		'authreffered' => '',
		'casename' => 'Shriniwas S/O Mulchand Ladniya Vs. Laxminarayan S/O Jainarayan Rathi and ors.',
		'casenote' => '[A] Criminal Procedure Code, 1973 - Section 397(2) - Revision - Powers of Sessions Court - Order of Chief Judicial Magistrate directing issue of process - The expression 'interlocutory order' cannot be used in a restricted sense - Liberal construction of the provision - Order not purely interlocutory but intermediate or quasi-final - Revision against the order of issue of process maintainable.;On plain reading of the provision of law in Section 397(2) of the Criminal Procedure Code it would reveal that the revision against any interlocutory order passed in any appeal, enquiry or trial or other proceedings would not lie. But then in the present case it cannot be said that the order directing issue of process against respondent No. 1 was an interlocutory order.;Having regard to the observations of the Hon'ble Supreme Court in Rajendra Kumar AIR 1999 SC 1028, it is quite obvious that the expression 'interlocutory order' cannot be used in a restricted sense and it merely denotes orders of interim or temporary nature which do not decide or touch the important rights or liabilities of the parties. Similarly, the provisions of Sub-section (2) of Section 397 have to be liberally construed. In order to ensure complete fairness of the trial and the revisional powers of the High Court or Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi-final. In the present order, a direction of issuance of process cannot be held to be purely interlocutory and, therefore, the said order passed by the Magistrate being intermediate or quasi-final substantially affecting the important rights and liabilities of the parties, particularly of respondent No. 1, cannot be said to be purely interlocutory order in order to oust the jurisdiction of the Sessions Judge. Therefore, the contention of the Counsel for the applicant that the revision before the Sessions Judge was not maintainable is totally misconceived and cannot be accepted.;[B] Negotiable Instruments Act, 1881 - Section 138 - Indian Penal Code, 1860 - Sections 406-420 - Dishonour of cheque - Cheating - One of the accused not a party to the decree - Issue of process against him not correct and proper.;The decree passed in Misc. Judicial Case No. 178 of 1993 would show that the respondent No. 1 Laxminarayan Jainarayan Rathi was not a party to that proceedings in relation to the arbitration and on this count alone, it can be said that issuance of process against him for the offence punishable under Section 138 of the Negotiable Instruments Act and under Sections 406 and 420 of the Indian Penal Code was not correct and proper. -  -  1, contended that the Revision before the learned Sessions Judge was perfectly maintainable though the Revision was filed against the order passed by the Magistrate under Section 204 of the Criminal Procedure Code directing issue of process. Paliwal further contended that in such circumstances the impugned order passed by the learned Sessions Judge in both the criminal revisions is perfectly legal and sustainable in law. 10. On anxious consideration of the contentions canvassed by the learned counsel, I am of the considered view that the revision before the learned Additional Sessions Judge under Section 397(2) of the Code of Criminal Procedure was perfectly maintainable.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'N.W. Kothari, Adv. holding for ;A.M. Ghare, Adv.',
		'counseldef' => 'V.K. Paliwal, Adv. for respondent No. 1 and ;Thakre, Additional Public Prosecutor    for respondent No. 7',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '2003-02-11',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.T. Kharche, J.',
		'judgement' => '<p style="text-align: justify;">S.T. Kharche, J. </p><p style="text-align: justify;">1. Rule taken up for final hearing with the consent of the parties.</p><p style="text-align: justify;">Heard Mr. Kothari, learned Advocate holding for Mr. A.M. Ghare, counsel for applicants, Mr. Paliwal, learned counsel for respondent No. 1 and Mr. Thakre, learned Additional Public Prosecutor for respondent No. 7 in both the applications.</p><p style="text-align: justify;">2. These two applications involve common questions of law and facts and, therefore, are being disposed of by this common judgment.</p><p style="text-align: justify;">3. These applications have been filed for quashing and setting aside the order, dated 17th August, 1998, passed by learned Additional Sessions Judge in Criminal Revision Nos. 105 of 1997 and 106 of 1997, whereby he set aside the order passed by the Judicial Magistrate First Class directing issuance of process against the respondent No. 1 in Criminal Case No. 13043 of 1994 for the offences punishable under Section 138 of the Negotiable Instruments Act and. under Sections 406 and 420 of the Indian Penal Code.</p><p style="text-align: justify;">4. Mr. Kothari, learned Advocate, contended that the applicants have filed proceedings for recovery of certain amount from respondents 2 and 3 in person and also respondents 4 and 6 - Firms and respondent No. 5 Company, of which respondents 1 to 3 are partners or Directors respectively. For any award or a decree passed against the respondent Nos. 3 to 5, respondent Nos. 1 to 3 were jointly and severally responsible. In recovery proceedings vide Misc. Judicial Case No. 178 of 1993, an arbitration award was passed and the respondents had agreed to pay the amount of Rs. 2,50,000.00 by way of six instalments with a stipulation that in case of default of any two instalments, the applicants were at liberty to recover full amount due on the date of default along with interest at the rate of 18% per annum. Mr. Kothari contended that this Award was confirmed on 6-10-1994 by the Civil Judge (Senior Division) and it has culminated into a decree. He further contended that in Criminal Application No. 2040 of 1998, the respondent No. 2 Sau. Shakuntal Laxminarayan Rathi had issued a cheque of Rs. 25,000.00 drawn on Washim Urban Co-operative Bank, Branch at Akola, towards instalment. The said cheque was presented for encashment with the Bank of 31st May, 1994 and the cheque was returned by the Bank on the ground 'Account closed'. The applicant, therefore, served the notice of fifteen days under Section 138 of the Negotiable Instruments Act, which was served on the respondents on 14th June, 1994; but the respondents did not pay the said amount and hence the applicant was constrained to file private Criminal Complaint under Section 138 of the Negotiable Instruments Act and under Sections 406 and 420 of the Indian Penal Code. The said complaint was filed on 25th July, 1994 in the court of learned Chief Judicial Magistrate. The learned Magistrate issued process against the respondents. The respondent No. 1 being aggrieved by the order of issue of process, had filed Criminal Revision No. 105 of 1997 in the Court of Additional Sessions Judge. On 17th August, 1998, the said Criminal Revision was allowed and the order passed by the learned Magistrate for the issuance of process was set aside and quashed. It is this order that is under challenge in this application.</p><p style="text-align: justify;">5. Mr. Kothari further contended that in Criminal Application No. 2041 of 1998, the respondent No. 3 Harish Jainarayan Rathi had issued the cheque for amount of Rs. 50,000.00 on 31st January, 1994 and the said cheque was presented for encashment on 31st May, 1994, which was dishonoured on the ground 'Account closed.' Then the fifteen days notice under Section 138 of the Negotiable Instruments Act was served on the respondents on 14th June, 1994 and thereafter a private Criminal Complaint was filed against the respondents on 25th July, 1994, in which the learned Chief Judicial Magistrate passed the order directing issue of process on 7th September, 1996. Being aggrieved by this order, the respondent No. 1 had filed Criminal Revision No. 106 of 1997 in the Court of learned Second Additional Sessions Judge, who quashed the order of issue of process and allowed the said Revision. It is this order that has been challenged in this Criminal Revision Application No. 2041 of 1998.</p><p style="text-align: justify;">6. Mr. Kothari contended that the Revision before the learned Additional Sessions Judge was not maintainable because the order passed by the learned magistrate was under Section 204 of the Criminal Procedure Code, which was purely an interlocutory order. He contended that, therefore, the learned Additional Sessions Judge committed an error in entertaining the revision and the order passed by him is not sustainable in law.</p><p style="text-align: justify;">7. Mr. Kothari further contended that the respondent No. 1 - Laxminarayan Jainarayan Rathi was looking after the transactions of the firms - respondents 5 and 6 and he being a family member of the respondents 5 and 6 Firm and Company, he is jointly and severally liable along with others. Mr. Kothari further contended that in such circumstances the impugned order passed by the learned Sessions Judge is not sustainable in law.</p><p style="text-align: justify;">8. Mr. Paliwal, learned counsel for the respondent No. 1, contended that the Revision before the learned Sessions Judge was perfectly maintainable though the Revision was filed against the order passed by the Magistrate under Section 204 of the Criminal Procedure Code directing issue of process. In support of these submissions, he relied on the decision of the Apex Court in Rajendra Kumar Sitaram Pande and Ors. v. Uttam and Anr., : 1999CriLJ1620 .</p><p style="text-align: justify;">9. Mr. Paliwal further contended that the respondent No. 1 was shown in the array of accused in both the private criminal cases on the allegation that he was a family member of the co-accused and involved in the business transactions and as such he would be liable to make the payment of Rs. 2,50,000.00 by way of instalments and would be jointly and severally liable. The learned Sessions Judge considered this aspect of the matter and rightly held that no criminal liability could be fastened against the respondent No. 1 simply because he was a member of the family of the co-accused. He contended that actually the cheque was issued by respondent No. 2 for Rs. 25,000.00 in favour of the applicant on 31st May, 1994 and the respondent No. 3 had issued the cheque of Rs. 50,000.00 in favour of the applicant on 31st January, 1994 and these cheques are said to have been dishonoured. He contended that there is no material on record from which it can be said that the respondent No. 1 Laxminarayan Jainarayan Rathi was in any way concerned with those transactions. He contended that even this respondent No. 1 Laxminarayan was not a party to the decree that has been passed by the learned Civil Judge (Senior Division) against the defendants in Misc. Judicial Case No. 178 of 1993. Mr. Paliwal further contended that in such circumstances the impugned order passed by the learned Sessions Judge in both the criminal revisions is perfectly legal and sustainable in law.</p><p style="text-align: justify;">10. On anxious consideration of the contentions canvassed by the learned counsel, I am of the considered view that the revision before the learned Additional Sessions Judge under Section 397(2) of the Code of Criminal Procedure was perfectly maintainable. It is not disputed that the learned Magistrate passed the orders in both the private criminal complaints on 7th September, 1996 directing issue of process against all the accused for the offences punishable under Section 138 of the Negotiable Instruments Act and under Sections 406 and 420 of the Indian Penal Code. The Criminal Revisions were filed against this order, which were entertained by the learned Additional Sessions Judge who allowed the Revisions and quashed the order of issue of process so far as the respondent No. 1 - Laxminarayan Jainarayan Rathi was concerned. Thus, the question, that arises for consideration, is whether the Revisions were maintainable before the learned Sessions Judge.</p><p style="text-align: justify;">11. Section 397(2) of the Criminal Procedure contemplates as under:--</p><p style="text-align: justify;">'(2) The powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.' </p><p style="text-align: justify;">On plain reading of this provision of law, it would reveal that the revision against any interlocutory order passed in any appeal, enquiry or trial or other proceedings would not lie. But then in the present case it cannot be said that the order directing issue of process against respondent No. 1 was an interlocutory order. The question whether order directing issue of process is interlocutory has been considered by the Hon'ble Supreme Court in the case of Rajendra Kumar Sitaram Pande (cited supra), wherein the Hon'ble Supreme Court observed in para 6 as under :--</p><p style="text-align: justify;">'6. Discretion in the exercise of revisional jurisdiction should, therefore, be exercised within the four corners of Section 397, whenever there has been miscarriage of justice in whatever manner. Under Sub-section (2) of Section 397, there is a prohibition to exercise revisional jurisdiction against any interlocutory order so that inquiry or trial may proceed without any delay. But the expression 'interlocutory order' has not been defined in the Code. In Amar Nath v. State of Haryana : 1977CriLJ1891 , this Court has held that the expression 'interlocutory order' in Section 397(2) has been used in a restricted sense and not in a broad or artistic sense and merely denotes orders of purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties and any order which substantially affects the right of the parties cannot be said to be an 'interlocutory order'. In Madhu Limaye v. State of Maharashtra : 1978CriLJ165 , a three Judge Bench of this Court has held an order rejecting the plea of the accused on a point which when accepted will conclude the particular proceeding cannot be held to be an interlocutory order. In V.C. Shukla v. State : 1980CriLJ690 , this Court has held that the term 'interlocutory order' used in the Code of Criminal procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial and the revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi final. This being the position of law, it would not be appropriate to hold that an order directing issuance of process is purely interlocutory and, therefore, the bar under Sub-section (2) of Section 397 would apply. On the other hand, it must be held to be intermediate or quasi final and, therefore, the revisional jurisdiction under Section 397 could be exercised against the same. The High Court, therefore, was not justified in coming to the conclusion that the Sessions Judge had no jurisdiction to interfere with the order in view of the bar under Sub-section (2) of Section 397 of the Code.' </p><p style="text-align: justify;">12. Having regard to these observations, it is quite obvious that the expression 'interlocutory order' cannot be used in a restricted sense and it merely denotes orders of interim or temporary nature which do not decide or touch the important rights or liabilities of the parties. Similarly, the provisions of Sub-section (2) of Section 397 have to be liberally construed. In order to ensure complete fairness of the trial and the revisional powers of the High Court or Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi final. In the present order, a direction of issuance of process cannot be held to be purely interlocutory and, therefore, the said order passed by the magistrate being intermediate or quasi final substantially affecting the important rights and liabilities of the parties, particularly of respondent No. 1, cannot be said to be purely interlocutory order in order to oust the jurisdiction of the Sessions Judge. Therefore, I am of the considered view that the contention of the learned counsel for the applicant that the revision before the Sessions Judge was not maintainable is totally misconceived and cannot be accepted.</p><p style="text-align: justify;">13. The next point is whether the respondent No. 1 would be liable criminally for the dishonour of two cheques, one issued on 31-5-1994 by respondent No. 2 and the other issued by respondent No. 3 on 31-1-1994, and whether the respondent No. 1 would be criminally liable for the transactions which were the subject-matter of Misc. Judicial Case No. 178 of 1993. The decree passed in Misc. Judicial Case No. 178 of 1993 would show that the respondent No. 1 - Laxminarayan Jainarayan Rathi was not a party to that proceedings in relation to the arbitration and on this count alone, it can be said that issuance of process against him for the offence punishable under Section 138 of the Negotiable Instruments Act and under Sections 406 and 420 of the Indian Penal Code was not correct and proper. The learned Sessions Judge rightly considered this aspect of the matter and from the material that has been mentioned in the complaint itself, no conclusion can be reached that the respondent No. 1 would be criminally liable for the act of dishonour of cheque, or for any other transaction. He was just a family member of other co-accused for which he has been shown in the array of the accused in the complaints. Even in the verification taken down by the Magistrate, it was mentioned by the applicant that the respondent No. 1 was the family member and carries on the business in the names of the firms respondents 4 to 6. This statement of the applicant had no foundation because the respondent No. 1 was not at all a party to the decree that has been passed in Misc. Judicial Case No. 178 of 1993 and simply because he is a family member of the other co-accused who were the Partners or Directors of the Firms - respondents 4 to 6, no conclusion can be drawn that the criminal liability would be attracted to respondent No. 1. In that view of the matter, I am of the considered view that no case has been made out for interference with the orders passed by the learned Additional Sessions Judge, who quashed the issuance of process against respondent No. 1. Therefore, both the applications are devoid of any merit and liable to be dismissed. Both the applications are dismissed. Rule is discharged.</p><p style="text-align: justify;">Copy of the Judgment be retained in Criminal Application No. 2041 of 1998.</p>',
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		'pubs' => '2003(2)ALD(Cri)93; I(2005)BC203; 2003BomCR(Cri)1469; 2003CriLJ3795; 2003(2)MhLj813',
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		'respondent' => 'Laxminarayan S/O Jainarayan Rathi and ors.',
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LAW: Section 138, Section 138, the Negotiable Instruments Act, the Indian Penal Code, Section 138, the Negotiable Instruments Act, Section 204, the Criminal Procedure Code, Section 204, the Criminal Procedure Code, Section 397(2, Section 138, the Indian Penal Code, Section 397, Section 397, Section 397, Section 397, Section 397 of the Code, Section 397, Section 138, the Indian Penal Code

PERSON: S.T. Kharche, Kothari, A.M. Ghare, Paliwal, Thakre, Kothari, Directors, Nos, Nos, Misc, Kothari, Award, Laxminarayan Rathi, Judicial Magistrate, Kothari, Judicial Magistrate, Kothari, Kothari, Kothari, Paliwal, Anr, Paliwal, Laxminarayan Jainarayan Rathi, Laxminarayan, Misc, Paliwal, Amar Nath v. State, Haryana, Limaye, Bench, V.C. Shukla, Misc, Misc, Misc

CARDINAL: 1, two, 105, 106, 1, 406, 420, 2, 3, 4, 5 Company, 1, 3, 3 to 5, 1 to 3, 178, 2,50,000.00, six, two, 6-10-1994, 2040, 25,000.00, 406, 420, 1, 105, 50,000.00, 1, 106, 2041, 1998.6, 5, 5, 1, 1999CriLJ1620, 1, 2,50,000.00, 1, 2, 25,000.00, 3, 50,000.00, 1, 178, 406, 420, 1, 1, 6, four, 2, 1977CriLJ1891, 1978CriLJ165, three, 1980CriLJ690, 2, 2, 12, 2, 1, 1, two, one, 2, 3, 31, 1, 178, 178, 406, 420, 1, 1, 4, 6, 1, 178, 4, 6, 1, 1.

ORG: Additional Public Prosecutor, Additional Sessions, Criminal Revision Nos, the Judicial Magistrate, Advocate, the Civil Judge (Senior Division, Criminal Application No, Washim Urban Co-operative, Bank, the Bank of 31st, Bank, Criminal Complaint, Magistrate, Criminal Revision No, the Court of Additional Sessions, Criminal Revision, Magistrate, Criminal Application No, Criminal Complaint, Criminal Revision No, Court, this Criminal Revision Application No, Additional Sessions, Additional Sessions, Magistrate, the Apex Court, Civil Judge (Senior Division, Additional Sessions, Magistrate, The Criminal Revisions, Additional Sessions, Revisions, Revisions, the Criminal Procedure, the Hon'ble Supreme Court, Rajendra Kumar Sitaram Pande, the Hon'ble Supreme Court, Court, Court, Court, the High Court, The High Court, the High Court, Magistrate, Additional Sessions, Criminal Application No

DATE: 17th August, 1998, 1997, 1994, 1993, May, 1994, fifteen days, 14th June, 1994, 25th July, 1994, 17th August, 1998, 2041, 1998, 31st January, 1994, 31st May, 1994, the fifteen days, 14th June, 1994, 25th July, 1994, 7th September, 1996, 6, 31st May, 1994, 31st January, 1994, 1993, September, 1996, 31-5-1994, 1993, 1993, 1993, 2041, 1998

NORP: Indian

PERCENT: 18%

GPE: Akola, law.7, Rajendra, Uttam, Madhu

FAC: Second Additional Sessions, Revision, Revision

PRODUCT: Revision, Revision

ORDINAL: 7th