225-J-APL-819-15 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO.819 OF 2015
Deepak s/o Prabhudayal Dajjuka,
aged 43 years, Occ. Business,
r/o Jaistambh Chowk, Station Area,
Murtizapur, Tq. Murtizapur,
Dist. Akola ... Applicant.
-vs-
1. Ajay Shivshankar Khemka,
aged major, Occ. Business,
r/o Vidharba Tractors, Murtzapur Road,
Akola.
2. Pankaj Ratanlal Bagadia,
aged major, Occ. Business,
r/o Radhe Nagar, Near Jain Building,
Akola.
3. State of Maharashtra,
Thr. P.S.O. Civil Lines,
Akola. ... Non-applicants.
Shri Gautam Chatterjee, Advocate for applicant.
Shri J. B. Gandhi, Advocate for non-applicant Nos.1 and 2.
Shri S. M. Ghodeswar, Additional Public Prosecutor for non-applicant
No.3/State.
CORAM : A. S. CHANDURKAR, J.
DATE : November 07, 2017 Oral Judgment :
This criminal application filed under Section 482 of the Code of Criminal Procedure, 1973 (for short, the Code) takes exception to the ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 01:05:43 ::: 225-J-APL-819-15 2/6 judgment of the learned Sessions Judge Akola in Criminal Revision No.46/2013. By the impugned judgment the order passed by the learned Magistrate issuing process against the accused has been set aside.
2. The applicant herein is the original complainant who had filed a complaint under Sections 379, 420, 427 read with Section 34 of the Indian Penal Code. As per the complaint, the complainant had purchased a three wheeler minidor in the year 2005. On 24/04/2006 said vehicle was taken to the showroom of the accused persons for servicing. The complainant was informed the vehicle could be taken back after 6 pm. The complainant in the evening made payment of Rs.466/- and took back his vehicle. After proceeding for some distance, the complainant found that the vehicle's fan belt was missing. The vehicle did not start and therefore it had to be tied to a rope for being taken away. According to the complainant certain parts of the vehicle were stolen while the vehicle was under servicing. On that basis, complaint came to be filed. Statement of the complainant was recorded on 25/02/2009. The proceedings had come before this Court in Criminal Application No.132/2011 filed at the instance of the present applicant. By order dated 01/08/2012 the trial Court was directed to decide the complaint in accordance with law.
3. On 14/12/2012, the learned Magistrate issued process against the ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 01:05:43 ::: 225-J-APL-819-15 3/6 accused. The non-applicant Nos.1 and 2 challenged this order by filing a revision application before the Sessions Court. By the impugned judgment the revision application was allowed and the complaint was dismissed. Hence the complainant has filed the present application.
4. Shri G. Chatterji, learned counsel for the applicant submitted that the learned Judge of the Sessions Court committed a jurisdictional error by examining the probable defence of the accused persons while considering the challenge to the order issuing process. It was submitted that at that stage, it is not necessary to consider the defence version nor is the evalaution of the evidence of the complainant necessary. The process having been issued by the learned Magistrate after finding a prima facie case having been made out, that order ought not to have been interfered with by the Sessions Court. Relying upon the judgment of the Honourable Supreme Court in (2015) 3 SCC 424 Sonu Gupta v. Deepak Gupta and ors. it was submitted that the impugned order was liable to be set aside and the complaint ought to be decided on merits.
5. Shri J. B. Gandhi, learned counsel for the non-applicant Nos.1 and 2 supported the impugned judgment. According to him, the learned Magistrate in a mechanical manner had issued process. According to the complainant himself, the vehicle had been taken away after its servicing. ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 01:05:43 :::
225-J-APL-819-15 4/6 After proceeding for about 18 kms, the complainant realized that certain parts of the minidor had been removed. This was not possible as the vehicle would not have started in absence of those parts. It was therefore submitted that it was rightly found by the Sessions Court that there was falsity in the case of the complainant. It was thus submitted that there was no reason to interfere with the impugned order.
Shri S. M. Ghodeswar, learned Additional Public Prosecutor appeared for non-applicant No.3/State.
6. After hearing the learned counsel for the parties and after perusing the material on record I find that the impugned judgment dismissing the complaint is not sustainable.
7. In Sonu Gupta (supra) it has been held that at the stage of issuance of process, the Magistrate is not required to consider the defence's version. In paragraph 8 thereof it has been observed thus :
" 8. ... At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor is he required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not."::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 01:05:43 :::
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8. From the aforesaid it is clear that what is required to be considered is whether a prima facie case had been made out for proceeding with the complaint. The same having been done by the learned Magistrate and process having been issued, it was not open for the Sessions Court to have examined the probability in the case of the complainant or the likely defence.
9. Perusal of the impugned order indicates that the Sessions Court has after considering the material on record drawn an inference that there was falsity in the statement of the complainant. It has then observed that there was also a possibility that some other persons than the accused persons had removed the parts from the complainant's vehicle. It did not rule out possibility of false implication. I find that the Sessions Court has taken into consideration aspects which were not permissible so to be taken into consideration at the stage when only the order issuing process was under challenge. The impugned judgment in the light of the law referred to herein above is thus not sustainable. It is liable to be set aside as having been passed by exceeding the revisional jurisdiction.
10. Accordingly the following order is passed :
(i) The order dated 19/10/2015 passed by learned Additional Sessions Judge, Akola in Criminal Revision Application No.46 of ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 01:05:43 ::: 225-J-APL-819-15 6/6 2013 is quashed and set aside.
(ii) The proceedings in Regular Criminal Case No. 454 of 2006 are restored to the file of learned Judicial Magistrate, First Class, Akola.
(iii) The complaint shall be decided on its own merits in accordance with law expeditiously. It is clarified that the observations made in this judgment are only for deciding the present proceedings and the same shall not influence the trial.
At this stage, learned counsel for non-applicant Nos.1 and 2 prays that the effect of this order be stayed for a period of four weeks from today. This request is opposed by the learned counsel for the applicant. Considering the said request, the learned Magistrate shall proceed with the consideration of the aforesaid complaint in the first week of January 2018.
JUDGE Asmita ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 01:05:43 :::