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Judgment
Sunil Gaur, J.—The petitioners in the above titled two petitions are common and the grounds taken to assail the impugned order are also common. Not only this, the impugned order dated 29th October, 2003 is also common in these two petitions.
With the consent of both the sides, these two petitions have been heard together and are being decided together by this common order.
In pursuance to the impugned order of 29th October, 2003, two complaints u/s 138 of the Negotiable Instrument Act were proceeded with although they were dismissed as withdrawn upon a compromise being entered at between the parties. The reason for proceeding with these two complaints by the trial court was that the compromise arrived at was not acted upon by the petitioners herein. In the impugned order, it has been held that the question of reviewing earlier order dated 1st November, 2001 does not arise and the reasoning given by the trial court, as contained in para ten of the impugned order, is as under:
The criminal trial is always has different connotation than civil trial. In civil cases the suit is either dismissed or decreed. However in criminal complaint cases, the complaint cases are not dismissed, rather accused is discharged or acquitted. Therefore, it is clear that even if my Ld. Predecessor has written the word ''dismissed'', the same has no consequence upon the status of the accused and the trial shall be deemed to be still pending. For the purpose of the closure of a case, accused must earn the verdict of either discharge or acquittal or conviction and if the criminal court has not given any verdict of discharging, convicting and acquitting the accused, it means the trial is still pending and accused is still in the docks.
The stand of the petitioners is that infact the impugned order amounts to a review which is not permissible in law. In support of this contention, reliance has been placed upon judgments reported in 1994 Crl.L.J 1134; (2003) 11 Supreme Court Cases 210; 2004 Crl. L.J. 1858 and (2005) 12 Supreme Court Cases 361.
After the so-called revival of the proceedings, upon passing of the impugned order, it had resulted in the conviction of the petitioners by the trial court on 4th September, 2006 and thereafter the petitioners had approached this Court, assailing the impugned order of the year 2003. In this background, the petitioners , after their conviction for the offence u/s 138 of the Negotiable Instrument Act have not been heard on the point of sentence till date, as proceedings of this case have been already stayed by this Court in these petitions.
This Court in case of Kavita v. State 2000 Crl.L.J. 315 has held that the extraordinary powers u/s 482 Cr.PC have to be exercised sparingly and should not be resorted to like remedy of appeal or revision.
It is well settled that the inherent powers u/s 482 of Cr.PC can be exercised only when no other remedy is available to the litigant. Further, the power being an extraordinary one, it has to be exercised sparingly and to prevent the abuse of the process of the court.
Since the petitioners already stand convicted for an offence u/s 138 of the Negotiable Instrument Act on the basis of the impugned order, therefore, it would be appropriate that the impugned order as well as the conviction of the petitioners is assailed by them by preferring an appeal against the order of conviction. Thus, the interim order staying proceedings of this case before the trial court stands vacated, so that the petitioners can be heard on the point of sentence and in order to permit the petitioners to have the remedy as available in law i.e. by preferring an appeal against their conviction and the sentence to be imposed upon them by the trial court. The question of legality of impugned order is left open, to be considered by the appellate Court, as and when, appeal is preferred.
With the aforesaid directions, these two petitions stand dismissed and the interim order of stay stands vacated.