Bombay High Court
Vithalrao Sharanappa Jalde vs Shankarrao Manikrao Deshmukh on 31 August, 2016
Bench: V.K. Jadhav
1 CRI APPLN 1595.2005.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 1595 OF 2005
VITHALRAO SHARANAPPA JALDE
Age 56 yrs, Occ. Advocate,
R/o Venkatesh Nagar,
Gulbarga, Dist. Gulbarga,
Karnataka State. Petitioner/
Orig. accused.
VERSUS
SHANKARRAO MANIKRAO DESHMUKH
Age 73 yrs, Occ. Pensioner,
R/o Dattanagar, Behind Tahsil Office,
R/o Nilanga, Tq. Nilanga,
Dist. Latur. Respondent.
Orig. complainant
...
CORAM : V.K. JADHAV, J.
Dated: August 31, 2016
...
ORAL JUDGMENT:-
1. Even though, this Court has marked the absence
of the counsel for the applicant on 24.8.2016 and
adjourned the case for today as last chance, counsel for
the applicant is not present even today. Learned
counsel for respondent is also absent.
2. Being aggrieved by the Judgment and order dated
28.2.2005 passed by the learned Adhoc Additional
2 CRI APPLN 1595.2005.odt
Sessions Judge, Nilanga, District Latur in Criminal
Revision Application No.47/2003, the original accused
has filed present Criminal Application.
3. Brief facts, giving rise to the present criminal
application are as follows :-
The respondent-original complainant had filed a
criminal case bearing STCC No.814/1998 before the
Judicial Magistrate First Class, Nilanga against the
petitioner for having committed an offence punishable
under section 138 of the Negotiable Instruments Act,
1881. The Judicial Magistrate First Class, Nilanga on
27.10.1998 took cognizance of the complaint and issued
process against the petitioner-accused. The learned
Magistrate by the same order has also issued a show
cause notice to the petitioner-accused mentioning
therein as to why delay occurred in lodging the
complaint should not be condoned as prayed by the
complainant. The learned 2nd Judicial Magistrate First
Class by order dated 15.9.2003 dismissed the said
complaint solely on the ground that there is a delay for
issuing notice as contemplated under section 138 (b) of
3 CRI APPLN 1595.2005.odt
the Negotiable Instruments Act and as such, there is
delay for filing the complaint in terms of the provisions
of Section 138 of the Negotiable Instruments Act. Being
aggrieved by the same, the respondent-original
complainant has preferred Criminal Revision
No.47/2003 before the Sessions Court and the learned
Adhoc Additional Sessions Judge, Nilanga District Latur
by its impugned order dated 28.2.2005 in Criminal
Revision Application No.47/2003 allowed the said
Criminal Application and quashed and set aside the
order passed by the Magistrate dated 15.9.2003 in STCC
No. 814/1998 and further directed to restore said case
on the file of the Judicial Magistrate First Class, Nilanga
with a specific direction that opportunity be given to the
revisional petitioner therein to adduce evidence, in
respect of his prayer of condoning the delay and decide
the matter on merit in accordance with law after hearing
both the parties. Being aggrieved by the same, the
petitioner-original accused has approached this Court
by filing present Criminal Application.
4. It appears from the order passed by the Judicial
4 CRI APPLN 1595.2005.odt
Magistrate First Class, Nilanga dated 27.10.1998 that
the learned Magistrate has issued process against the
accused pending the application for condonation of
delay, however, by the same order also issued a show
cause notice to the petitioner-accused as to why delay
caused in lodging the complaint should not be condoned
as prayed by the complainant. The learned Adhoc
Additional Sessions Judge, Nilanga has allowed
Criminal Revision Application on two grounds. Firstly,
the Magistrate has no power to review or re-consider his
own decision of issue process and secondly, that, the
Magistrate by arbitrary order dated 15.9.2003 dismissed
the complaint without giving an opportunity to the
complainant to adduce evidence or to explain the delay
occurred in lodging the complaint.
5. I do not find any fault in the impugned order
passed by the Adhoc Additional Sessions Judge,
Nilanga, District Latur dated 28.2.2005 in Criminal
Revision No.47/2003. The learned Magistrate has issued
process against the accused on the basis of allegations
made in the complaint and at the same time also issued
5 CRI APPLN 1595.2005.odt
a show cause notice to the accused as to why delay
caused in filing the complaint should not be condoned.
The learned Magistrate then cannot review or re-
consider his order so far as issuance of process against
the petitioner-accused is concerned. The learned Adhoc
Additional Sessions Judge, Nilanga, has, therefore,
quashed and set aside the order passed by the learned
Magistrate dated 15.9.2003 with the observations that
said order came to be passed without giving an
opportunity to lead evidence in respect of delay
condonation application. It appears from the order
passed by the Magistrate dated 15.9.2003 that such
opportunity is not given to the respondent-original
complainant. In view of this, I do not find any fault in
the order passed by the learned Adhoc Additional
Sessions Judge, Nilanga, directing the Magistrate to
restore the case to its original number and further give
an opportunity to the original complainant to adduce
evidence in respect of his prayer for condonation of
delay. There is no merit in this Criminal Application.
Hence, following order.
6 CRI APPLN 1595.2005.odt
O R D E R
Criminal Application is hereby rejected. Rule discharged
sd/-
( V.K. JADHAV, J. )
....
aaa/-
