IMPORTANT POINT
The power to recall a judgment will not be exercised when the ground for reopening the proceedings or vacation the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed.

Suneet Kumar, J.—By means of this recall application, the applicant seeks to recall order dated 28.3.2016, whereby the petition was disposed of directing the court below to conclude the trial under Section 138 of Negotiable Instrument Act 1881 (N.I.Act) expeditiously within a stipulated period without granting unnecessary adjournment.

2. The applicant herein sought quashing of proceedings of complaint case No. 3255 of 1999 (Rajendra Swarup Dixit Vs. Aneja Consultancy and another), filed under Section 138 of N.I. Act. The petition under Section 482 Cr.P.C was filed by Sri Manu Saxena, learned counsel for the applicant. The matter was argued at length by the counsel, thereafter, petition was disposed of. The present recall application has been instituted by a subsequently engaged counsel, Sri Anil Tiwari, along with the earlier counsel, who appeared to press the recall application.

3. The assertions made in the recall application are on the merit of the case stating therein that the cheques in question was signed by the applicant as authorized signatory of a proprietor firm M/s Aneja Consultancy, therefore, the applicant would not be liable for prosecution. Upon being summoned the applicant, as well as, Chief Managing Director of the firm, filed objection against the summoning order and an application for discharge. Discharge application was rejected against which the applicant filed a petition being Crl. Misc. Writ Petition No. 7015 of 2001, wherein, vide order dated 6.12.2001, further proceedings of complaint case against petitioner/applicant was stayed. The writ petition was subsequently dismissed in default on 3.4.2015 and remains as such till date. It is sought to be contended that thereafter on the issuance of warrant, the entire proceedings of complaint was challenged in proceeding under section 482 Cr.P.C which was disposed of by this court, order passed therein is being sought to be recalled. It is sought to be contended that unless the firm is prosecuted, the official of the firm as such cannot be prosecuted in view of Section 141 N.I. Act. Reliance has been placed upon Aneeta Hada Vs. Godfather Travels and Tours (P) Ltd., 2008(13) SCC 703 It is further contended that the applicant is prepared to deposit the entire sum due before this Court to show his bonafide, therefore, the legal questions that is being raised in the recall application be decided by this Court.

4. Sri Anil Tiwari, learned counsel for the applicant would contend that the complaint filed under Section 138 NI Act against the applicant is misuse of process of court, the applicant is authorized signatory of the cheque and is not responsible for the affairs of the firm, further, the cheque was issued by a proprietor firm, therefore, the applicant cannot be prosecuted for an offence under Section 138 not being the account holder.

5. Be that as it may, the recall application is gross misuse of process of the court. It is not the case of the applicant that his counsel was not heard, it is also not the case of the applicant that the submission advanced before the Court was not taken into consideration, therefore, the order as such cannot be recalled. In this background, in my opinion, the present application is misconceived, under the garb of recall application, the matter cannot be reagitated on merit, whatever was argued and pressed by the learned counsel before the Court was considered and accordingly order was passed. The ground that are being sought to be pressed through the recall application was neither raised nor pressed when the matter was argued by the previous counsel. Further, conduct of the applicant is also not bona fide as it was clearly pleaded that earlier he had assailed the summoning order and order rejecting the discharge application in a petition being Crl. Misc. Writ Petition No. 7012 of 2001 before this court, in which an interim order was granted on 6.12.2001 staying further proceedings of the complaint case. The writ petition came