Shankarrao S/O Kashinath Pode vs Pandurang S/O Sambhaji Kutarmare ...
2005 Latest Caselaw 290 Bom

JUDGMENT

S.T. Kharche, J.

1. Heard the learned Counsel for the parties. 2. This petition takes an exception to the order dated 4-9-2004 passed by the learned 3rd Ad hoc Additional Sessions Judge in Criminal Revision No. 103/04, whereby the revision has been dismissed and the order below Exh. 89 dated 27-5-2004 passed by the learned Judicial Magistrate, First Class in Private Criminal Case No. 145/02 rejecting of application (Exh. 89) was confirmed.

3. The respondent filed private complaint in the Court of the learned Judicial Magistrate, First Class on 5-1-2002 for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (For short, the Act) which was registered as Criminal Case No. 145/02. The learned Magistrate framed the charge against the accused on 28-1-2003. Thereafter the evidence of two witnesses was recorded by the learned Magistrate and after that an application (Exh. 89) was submitted by the petitioner-accused on 15-4-2004 for quashing the criminal proceedings on the ground that illegal procedure has been followed in conduction of the trial instituted upon a private complaint. The said application was rejected by the learned Magistrate on 27-5-2004 and being aggrieved by this order, the petitioner-accused carried criminal revision before the Sessions Judge. The learned Ad hoc Sessions Judge dismissed the revision and confirmed the order of rejection of the said application (Exh. 89) for quashing of the criminal prosecution and for discharge of the accused. This order is under challenge in this petition.

4. Mr. Dharmadhikari, the learned Counsel for the petitioner-accused contended that the learned Magistrate has not recorded the evidence before charge as is required under Section 244 of the Code of Criminal Procedure because it was being tried as a warrant case and without recording the evidence, the framing of charge against the accused under Section 138 of the Act on 28-1-2003 was bad in law. He contended that the entire procedure adopted by the learned Magistrate by assuming jurisdiction to proceed with the trial under Section 244 of Criminal Procedure Code cannot be sustained in law and the petitioner-accused would be entitled for discharge under Section 346 of Criminal Procedure Code. He contended that since the procedural illegality has been committed by the Magistrate in framing the charge against the accused-petitioner without recording the evidence, the trial itself has vitiated and in such circumstances the criminal prosecution deserves to be quashed. In support of these submissions he relied on the decision of this Court in the case of Sambhaji v. State of Maharashtra, 1978 Mh.L.J. 808 and on the decision of the Madhya Pradesh High Court in the case of Dhanesh v. Ram Kumar, 1996 Cri.L.J. 4506.

5. Mr. Sirpurkar, the learned Counsel for the respondent-complainant contended that after framing of the charge against the petitioner-accused, he has availed the opportunity of cross-examination of two witnesses whose evidence was recorded by the learned Magistrate before 15-4-2004 and as such no prejudice will be caused to the accused if the proceedings are allowed to continue. He contended that from the material placed on record, it cannot be said that the impugned order has resulted into miscarriage of justice and that if the proceedings are allowed to be continued, that would amount to abuse of the process of the Court and in such circumstances, the criminal prosecution against the petitioner-accused for the offence punishable under Section 138 of the Act is not liable to be quashed by invoking the powers under Section 482 of Criminal Procedure Code. He contended that in such circumstances, the petition may kindly be dismissed.

6. This Court has given thoughtful consideration to the contentions canvassed by the learned Counsel for the parties. There is no dispute that the petitioner-accused had issued cheques in favour of the complainant which were dishonoured and consequently the complainant had filed the private complaint case against him for the offence punishable under Section 138 of the Act. The private criminal complaint was filed on 5-1-2002. The charge was framed on 28-1-2003. It is also not disputed that thereafter the evidence of two witnesses was recorded and then complainant moved the Magistrate by filing application (Exh. 73) for holding de-novo trial in accordance with the provisions of Section 326 of Criminal Procedure Code. This application was rejected by the Magistrate by assuming powers to proceed with the trial under Section 259 of the Criminal Procedure Code.

7. It is necessary to reproduce Section 259, Criminal Procedure Code which contemplates as under :

259. Power of court to convert summons cases into warrant cases --When in the course of the trial of a summons case relating to an offence punishable with imprisonment for a term exceeding six months, it appears to the Magistrate that in the interests of justice, the offence should be tried in accordance with the procedure for the trial of warrant cases, such Magistrate may proceed to re-hear the case in the manner provided by this Code for the trial of warrant cases and may recall any witness who may have been examined."

8. In the present case it appears that by assuming powers under Section 259, Criminal Procedure Code, the Magistrate converted the summons case into the warrant case and framed the charge under Section 138 of the Act which was punishable with imprisonment for a term which may extend to one year or with fine which may extend to twice the amount of the cheques, or with both, at the relevant time. Be that as it may, it would reveal that after the charge is framed by the Magistrate assuming the jurisdiction to proceed with the case as a warrant trial case, he has to follow the procedure laid down under Chapter XIX of the Code of Criminal Procedure particularly under Sections 244 to 250. Section 244 of the Code contemplates as under :

244. Evidence for prosecution.-- (1) When, in any warrant case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.

(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.

9. Section 245 of the Code deals with discharge of accused and it contemplates as under :

245. When accused shall be discharged -- (1) If, upon taking all the evidence referred to in Section 244 the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.

(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.

10. The present case is the one in which the accused though submitted the application for quashing proceedings, he did not come with a case that prima facie the charge was groundless. Thus, it appears that the learned Magistrate had framed the charge under Section 138 of the Negotiable Instruments Act against the petitioner-accused not only on the basis of the contents of the complaint but also on the basis of the statement of the complainant recorded on oath in the nature of verification. If the charge has been framed, then the Magistrate cannot revert back and explain the particulars of the offence or start recording the evidence before charge. The only course open to the Magistrate was to proceed further from the stage of the evidence recorded in the trial and the present case in the one in which the evidence of two witnesses was already recorded by the learned Magistrate after framing of the charge and thereafter the accused did submit the application on 15-4-2004 for quashing the proceedings.

11. Since it is not the contention of the accused that the charge was groundless, the Magistrate was perfectly justified in proceeding with the trial. Simply because, the summons case has been converted into warrant case, that per se would not result into in any illegality, especially in absence of any material on record to show that the prejudice will be caused to the accused in case the criminal proceedings are allowed to be continued. There is no material from which it can be said that the impugned order has resulted into miscarriage of justice or that continuation of criminal prosecution would amount to abuse of process of the Court or otherwise, in order to secure the ends of justice, it is necessary that the criminal prosecution should not be allowed to continue. In such circumstances, no case has been made out for interference. The petition dismissed. Rule discharged.