The Bombay High Court reiterated that orders passed on merits cannot be recalled under Section 362 CrPC, and Section 482 CrPC cannot override the express statutory bar, even where the applicant alleges denial of hearing due to change of advocate and absence on the date of hearing. Essentially, the Court held that an order passed on merits after considering pleadings, documents, and applicable statutory provisions cannot be recalled under Section 362 of the Code of Criminal Procedure, 1973, which is confined to correction of clerical and arithmetical errors.
The Court said that a party seeking recall of an ex-parte order must establish cogent grounds justifying recall, and mere absence on the date of hearing, particularly where the party had previously sought multiple adjournments, does not constitute a sufficient ground. Further, a delay in filing a recall application is a material factor against the applicant, and an inordinate delay of approximately 9 months without sufficient cause weighs heavily against the exercise of recall jurisdiction.
A Single Judge Bench of Justice Dr. Neela Gokhale noted that the order sought to be recalled was passed on merits after considering the averments in the complaint and the documents on record, and after examining and applying the provisions of Sections 138 and 141 of the Negotiable Instruments Act, 1881 to the facts of the case.
The Court recorded the Applicant’s absence on several dates of hearing. While some adjournments were taken by consent of both parties, the Applicant had itself sought adjournments on three specific occasions, namely 23 February 2016, 27 June 2016, and 8 August 2016. On subsequent dates, the matter was adjourned either for paucity of court time or on joint request.
The Court observed that the Applicant was not represented on the date when the matter was heard and the order came to be passed, and that the case was of the year 2014. The Court further noted that the recall application was filed after an inordinate delay of almost 9 months without sufficient cause being explained.
Briefly, Pico Capital Private Limited (formerly Mode Export Private Limited) filed a complaint under Sections 138 and 141 of the Negotiable Instruments Act, 1881, before the Metropolitan Magistrate, 7th Court, Bhoiwada, Mumbai, against Vinod Kumar Chaturvedi (Managing Director of Usher Agro Limited), M/s. Swajay Finance Private Limited, and other directors. The complaint alleged that Vinod Kumar Chaturvedi, being the CMD of Usher Agro Limited, induced Pico Capital to make an Inter Corporate Deposit of Rs. 150 Lakhs in Swajay Finance (his front company), on representations that he would be personally liable to repay the amount and that shares of Usher Agro Limited were pledged as security/guarantee.
The Metropolitan Magistrate issued process against the respondents vide order dated 16 December 2013. Aggrieved, Respondent No. 1 challenged the issue process order before the Bombay High Court, which, by an ex-parte order, quashed the issue process order.
