Bombay High Court
Dipak Chandrakant Shirke vs Nilesh Marotrao Nagolkar on 21 December, 2013
Bench: P.D. Kode
1 WP137-13.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Writ Petition No.137/2013
Dipak Chandrakant Shirke,
Aged about 48 years,
Occupation: Service,
Resident of 650,
Shukrawar Peth,
Shivaji Ward Pune. .. PETITIONER
.. Versus ..
Nilesh Marotrao Nagolkar,
aged about 38 years,
Occupation: Service,
Resident of Plot No.2,
Joshi Layout, Subhash Nagar,
Nagpur. .. RESPONDENT
Mr. S.M. Bahirwar, Advocate h/f Mr. S.P. Bhandarkar, Advocate for
Petitioner.
Ms. A.M. Nair, Advocate for Respondent.
...
CORAM : P.D.KODE, J.
DATED : DECEMBER 21, 2013
ORAL JUDGMENT
1. Heard.
2. Rule. Rule made returnable forthwith. Heard finally by
consent of parties.
2 WP137-13.odt
3. By this petition under Article 227 of the Constitution of
India read with Section 482 of the Code of Criminal Procedure, the
accused in Summary Criminal Case No.3624 of 2007 of the Court of
8th Judicial Magistrate First Class, Nagpur, assails the order dated
23.01.2013 passed by the said Court rejecting the application
preferred by him for dismissal of the complaint.
4. Considering the short controversy involved in the matter,
it appears wholly unnecessary to recite in detail regarding the said
case except stating that upon the complaint made by the
respondent of the petitioner having committed an offence
punishable under Section 138 of the Negotiable Instruments Act, the
process was issued against the petitioner and three more accused. It
appears that the petitioner thereafter preferred an application Exh.
106 for dismissal of the said complaint on the count that he is not
the Director of the Company i.e. the accused no.3 in the said case.
5. The part of the order to which the attention was drawn by
the learned counsel for the petitioner reveals that the said order
was passed before recording the plea of the petitioner. The
impugned order reveals that the application was rejected by the trial
Court on the count of the procedure to be followed for the said case
was the procedure meant for summary cases and there was no
provision for dismissal of the complaint after issuing of the process
as after issuing the process it must end either in the acquittal or in
the conviction. The order also reveals that the matter was fixed for
3 WP137-13.odt
recording the plea of the petitioner but it could not be recorded due
to all the accused being not present.
6. All the aforesaid clearly reveals that the trial Court has not
followed the procedure prescribed under the law. The reference to
Section 262 of the Cr.P.C. read with Section 143 of the Negotiable
Instruments Act reveals that the trial Court was bound to follow the
procedure for summary cases prescribed under the Code and further
by virtue of Section 262 of the Cr.P.C. was bound to follow the
procedure meant for summons cases as prescribed under the Code.
In the said context, the reference to Section 251 of the Cr.P.C.
prescribed in the said Code and the one which reads as under:-
"When in a summons-case the accused appears
or is brought before the Magistrate, the
particulars of the offence of which he is accused
shall be stated to him, and he shall be asked
whether he pleads guilty or has any
defence to make, but it shall not be necessary
to frame a formal charge."
and particularly the emphasized portion from it "whether he pleads
guilty or has any defence to make", contemplates the trial Court
was bound to hear the petitioner at the time of explaining
accusation to him. The said wording denotes that the petitioner has
right to tell about his defence to the Court at the said stage and the
Court has to take into consideration the same while explaining the
accusation to the said accused. The order impugned in no uncertain
terms reveals that the stage of explaining the accusation is not over.
7. Having regard to the same, the order passed by the trial
Court cannot be legally sustained and hence liable to be and
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accordingly hereby quashed and set aside and the matter is
relegated back to the trial Court for deciding the application at Exh.
106 in accordance with the law. With regard to the observation
made in the said order, that the accused are not remaining present
for the said stage, it will be necessary to observe that in such
contingency trial Court should take recourse to necessary provisions
for enforcing attendance of the said accused i.e. for meeting such
situation arising.
8. Rule made absolute in the aforesaid terms.
(P.D.Kode, J.)
.........
halwai/ps
