1. Petition under Section 561-A Cr.PC 44/09 was filed seeking quashment of the complaint filed by the respondents under section 138 of Negotiable Instruments Act of 1881 (for short "Act of 1881").

2. The said petition came up before the Court on 29th June, 2009 and was heard and dismissed by the Court vide aforesaid judgment.

3. Perusal of the judgment dated 29th June, 2009 reveals that a complaint was sought to be quashed on the ground that the same has been filed through attorney of the complainant and not by the complainant himself.

4. The Court dismissed the petition by relying on the judgment passed in the identical matter Cr.M.P No. 69/2009, filed under Section 561-A Cr.P.C.

5. The instant petition 561-A Cr. PC read with Section 94 of the Constitution of J&K has been filed to recall the judgment dated 29th June, 2009 passed in 561-A Cr. M.P No. 44/2009 on the ground that all the grounds pleaded in the earlier petition were not considered and decided by the Court, so, it becomes duty of the Court to recall the judgment and decide the case on all the grounds which were pleaded in the earlier petition.

6. Notice has not been issued in this case. This Court vide order dated 27th November, 2009 requested the learned counsel for petitioner to satisfy the Court about the maintainability of this petition.

7. Mr. Qureshi, learned counsel appearing for the petitioner submitted that this petition is competent and maintainable as all the grounds pleaded in the earlier petition have neither been considered nor any finding is returned thereon. Learned counsel further submitted that the bar contained under Section 369 of Code of Criminal Procedure, Svt. 1989 (for short "Act of 1989") is not attracted in the fact situation of this case and, therefore, this petition is competent and maintainable. Learned counsel, in order to buttress his arguments, referred to and relied on a judgment of this Court reported in SLJ 2001 J&K page 199. Learned counsel, thus, submitted that this Court has power to recall the judgment passed in the earlier writ petition and has also power to rehear and decide the case afresh on the points not considered and decided.

8. The Court, while relying on the earlier Full Bench judgment reported in 1982 KLJ page 55 as also the judgment of the Honble Supreme Court reported in AIR 1979 SC page 1987, at paragraph 6, recorded that Section 369 of the Code precludes the High Court from altering or reviewing the judgment passed in exercise of the appellate or revisional jurisdiction when signed by it. It is also held that Section 561-A Cr.P.C. cannot be invoked to exercise the power which are inconsistent to specific provisions of the Code.

9. The Full Bench, however, ruled that in case judgment or order has been passed without hearing the party aggrieved, such an order, being nullity, the same can be recalled. The Court in the said judgment further observed that when an error apparent on the face of record is shown to exist, then in view of marked difference between the provisions of Section 362 of Code of Criminal Procedure (Central), on which the judgment of the Honble Supreme Court is based, and Section 369 of Act of 1989, the Court in exercise of its Constitutional powers can recall the judgment.

10. Learned counsel for petitioner has placed whole hog reliance on the said judgment.

11. In order to appreciate the issues raised, it becomes imperative to refer to Section 369 of the Act of 1989, which is reproduced as under:-

"369. Court not to alter judgment

Save as otherwise provided by this Code or by any other law for the time being in force or, in the case of the High Court, by the constitution of High Court, no Court, when it has signed its judgment, shall alter or review the same, except to correct clerical error".

12. Section 94 of the Constitution of J&K, which is almost similar to Article 215 of the Constitution of India, is reproduced as under:

"High Court to be a Court of Record.- The High Court shall be a court of record and

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