M.Subramaniyam and Ors. vs Ram Agya Prasad Gupta

Palok Basu, J.

The two applicants Mr. Subramaniyam and Sri Haridas allege themselves to be partners of a firm known as Sudershan Finance Corporation, Ram Agya Prasad Gupta has filed a complaint, which is pending as case No. 621/1979, in the Court of the Special Chief Judicial Magistrate, Gorakhpur under Section 420/406/506 I. P, C. The applicants have been directed to be summoned in the said case by the Sessions Judge, who on a revision by the complaint set aside the. order of the Magistrate, by which lie had refused to summon the applicants. Hence this petition under Section 482 Cr. P. C. by these two applicants.

Sri S. Rathore, learned Counsel for the applicants vehemently argued that the earlier revisional order dated 661980 has become final between the parties and therefore it was not open to the Sessions Judge to direct the applicants to appear in the case. He relied upon the case of A.R. Antule v. State of Maharashtra, AIR 1988 SC 1531 (Para 27). It was argued that even a wrong judgment will operate as res judicata between the parties. The observation does not require any comments, except that the argument of the learned counsel on the basis of the said observation is misconceived. In the cited decision, the Hon''ble Supreme Court has reconsidered its own earlier judgment. The later observations that the earlier decision required such reconsideration was because of the legal position flowing from statutes. The law has been pronounced out of number by the Hon''ble Supreme Court that estoppel cannot be pleaded against law. A judgment on facts, even though wrong shall have to be treated as res judicata in a given case.

The fact remains that Section 305 Cr. P. C. is applicable only to ''Corporations'' and it has been said that Corporation means an ''incorporated company'' or a body corporate and include a society registered under Societies Act 1860,

Sri Siddhartha Shukla, learned Counsel for the complainant said that the averment on behalf of the two applicants that M/s Sudharshan Finance Corporation has by now been registered under Societies Registration Act is an afterthought and should not affect the complainant nor should it affect the order impugned through this application. It is true that the averments about the registration under Societies Registration Act have been made only in the Supplementary rejoinderaffidavit. Under the circumstances, benefit, if any, of the said registration cannot be given by this Court, while deciding this application under Section 482, Cr. P. C. because it is basically a question of fact to be decided by the Magistrate in accordance with the law, if and when raised before him. No other point survives for decision.

5 This application is dismissed. The interim order, dated 2711982 is vacated.

Application dismissed