Recall of process is not maintainable before the issuing court, and NI Act proceedings may continue against a partner on proper averments.

A subordinate criminal court cannot recall its own order issuing process in a Negotiable Instruments Act complaint; the proper course is to approach the appropriate higher jurisdiction, and unexplained delay also weighs against recall, so the recall application was rightly rejected. A complaint may proceed against a partner where the pleadings allege that the cheques were issued in that capacity and disclose the requisite statutory averments, even if the firm is not arrayed as an accused, so the prosecution against the partner was maintainable.

---

---

Issues: (i) Whether an application seeking recall of an order issuing process in a complaint under the Negotiable Instruments Act was maintainable; (ii) whether the complaint could proceed against a partner despite the firm not being arrayed as an accused.

Issue (i): Whether an application seeking recall of an order issuing process in a complaint under the Negotiable Instruments Act was maintainable.

Analysis: The order issuing process had not been challenged for more than nine years. The subordinate criminal court had no power to review or recall its own order issuing process. In such a situation, the proper remedy was to invoke the appropriate jurisdiction rather than seek recall before the issuing court. The unexplained delay also weighed against the applicant.

Conclusion: The recall application was not maintainable and was rightly rejected.

Issue (ii): Whether the complaint could proceed against a partner despite the firm not being arrayed as an accused.

Analysis: The complaint contained averments that the accused was a partner and that the cheques were issued in that capacity. On the pleaded facts, liability under the statutory deeming provision could attach to the partner even if the firm was not joined as an accused. The absence of the firm as a party did not by itself defeat the prosecution where the complaint otherwise disclosed the necessary allegations.

Conclusion: The complaint was maintainable against the partner.

Final Conclusion: The challenge to the refusal to recall process failed, and the prosecution was permitted to continue.

Ratio Decidendi: A subordinate criminal court cannot recall its own order issuing process, and a complaint under the Negotiable Instruments Act may proceed against a partner where the pleadings disclose the requisite statutory averments, even if the firm is not arraigned as an accused.

---