Bombay High Court
Vilas Kundanmal Lodha vs Sunil Popatlal Bamb And Anr on 9 December, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1173 OF 2009
Vilas S/o Kundanmal Lodha,
Age. 60 years, Occ. Business,
R/o. C-104, Isha Emrald, Bibvewadi,
Kondhava Road, Pune-37. ...Petitioner
versus
1. Popatlal S/o Hiralal Bamb,
Age. 70 years, Occ. Business,
R/o. Bank Road, Kopargaon,
Tq. Kopargaon, Dist. Ahmednagar.
2. The State of Maharashtra. ...Respondents
...
WITH
CRIMINAL WRIT PETITION NO. 1174 OF 2009
Vilas S/o Kundanmal Lodha,
Age. 60 years, Occ. Business,
R/o. C-104, Isha Emrald, Bibvewadi,
Kondhava Road, Pune-37. ...Petitioner
versus
1. Sunil S/o Popatlal Bamb,
Age. 43 years, Occ. Business,
R/o. Bank Road, Kopargaon,
Tq. Kopargaon, Dist. Ahmednagar.
2. The State of Maharashtra. ...Respondents
...
Advocate for Petitioner : Mr. Garud N.C.
APP for Respondent No.2: Mr. S P Tiwari
Advocate for Respondents : Mrs. Rashmi S Kulkarni h/f S.S Kulkarni
(in both writ petitions)
.....
::: Uploaded on - 15/12/2016 ::: Downloaded on - 16/12/2016 00:14:53 :::
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CORAM : V. K. JADHAV, J.
DATED : 9th DECEMBER, 2016
ORAL JUDGMENT:-
1. Being aggrieved by the judgment and order dated 1.12.2009
passed by the learned Additional Sessions Judge, Ahmednagar in
criminal Revision No. 219 of 2008 and 220 of 2008, the original
accused has approached this court by filing present criminal writ
petitions.
2. Brief facts, giving rise to the present writ petitions, are as
follows:-
a. Present respondent No.1 had filed two complaints bearing
S.T.C. No. 98 of 2003 (old) and 2598 of 2008 (new) and 100 of 2003
(Old) and 2599 of 2008 (new) before the Judicial Magistrate, First
Class, Kopargaon against the present petitioner-accused for having
committed an offence punishable under Section 138 of Negotiable
Instruments Act, on account of dishonour of cheques. The parties
are same and on account of dishonour of two cheques, two separate
complaints, as aforesaid, came to be filed before the J.M.F.C.
Kopargaon. In both the cases, the petitioner original accused has
filed application Exh. 63 and 60 respectively, thereby challenging the
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territorial jurisdiction of the Magistrate, Kopargaon to try and entertain
the complaints. However, the learned Magistrate has rejected both
the applications and the petitioner accused has therefore, filed two
separate criminal applications bearing No. 4360 of 2007 and 4349 of
2007 in this court. By order dated 30.4.2008, this court has quashed
and set aside the order passed by the Magistrate and further directed
to return the complaints to the complainant for presenting the same
to the appropriate court, having territorial jurisdiction.
b) Accordingly, the respondent complainant presented two
separate complaints before the J.M.F.C. Ahmednagar. The learned
Magistrate, Ahmednagar, in both the cases, instead of issuing
process, directly issued summons to the petitioner accused. Being
aggrieved by the same, the petitioner original accused preferred two
separate criminal revision applications, as aforesaid, and learned
Additional Sessions Judge, Ahmednagar by two separate judgment
and orders dated 1.12.2009, in aforesaid criminal revision
applications, allowed the revision applications and quashed and set
aside the order passed by the learned Magistrate, Ahmednagar and
further directed the learned Magistrate, Ahmednagar to consider the
point of limitation if raised by either of the parties before it or suo-
moto and thereafter, if necessary, proceed further in accordance with
Sections 200 to 204 of Cr.P.C. in accordance with law.
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3. Learned counsel for the petitioner submits that the respondent
complainant has presented the complaints as per the order passed
by this Court. However, at that time, the complains in question were
barred by limitation and the learned Magistrate should not have taken
cognizance of the same without condoning the delay. The
respondent complainant has not filed any application for condonation
of delay. Even though the complaints were presented before the
Magistrate at Ahmednagar, the learned Magistrate without complying
with the provisions of section 200 of Cr.P.C., erroneously observed
that it is not necessary to issue process against the accused, as the
case has been transferred and accordingly issued summons to the
petitioner accused for his appearance. Though, the learned
Additional Sessions Judge, Ahmednagar by its impugned order
quashed and set aside the order passed by the Magistrate,
Ahmednagar, however, erroneously further directed the Magistrate,
to consider the point of limitation if raised by either of the parties
before it or suo-moto for compliance with the provisions of Section
200 to 204 of Cr.P.C., if found necessary. Entire approach of the
learned Additional Sessions Judge is improper, incorrect and illegal.
The provisions of Limitation Act cannot be made applicable to the
complaint under Section 138 of Negotiable Instruments Act and in
absence of any application for condonation of delay, as provided
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under Section 142 of Negotiable Instruments Act, there is no
question of condonation of delay.
4. Learned counsel for the petitioners, in order to substantiate his
contentions, placed reliance on the judgments in the following
cases:-
I) Times Business Solution Limited vs. Databyte, reported in
AIR 2015 SC 1138,
ii) Vijay Dhanuka etc. vs. Najima Mamtaj Etc. reported in 2014
AIR SCW 2095,
iii) Subodh S. Salaskar vs. Jayprakash M. Shah and Anr,
reported in AIR 2008 SC 3086
iv) K.S. Joseph vs. Philips Carbon Black Ltd. and Anr.
reported in AIR 2016 SC 2149
v) Raj Kumar Singhania vs. Ashok Jain, reported in 2012
Cri.L.J. 2254
5. Learned counsel for the respondent-original complainant
submits that the learned Additional Sessions Judge, by its impugned
order, kept the point of limitation open by observing that the time
spent for litigation bonafide in another Court is required to be
excluded from computing the period of limitation as per Section 14 of
the Limitation Act and therefore, time spent in Kopargaon Court must
be excluded and upon such exclusion, the complaint is within the
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period of limitation. Even by referring to the provisions of Section 14
of the Limitation Act, and even observing that the complaint is within
the period of limitation, after excluding the period spent in Kopargaon
Court, the Additional Sessions Judge has unnecessarily kept the
point of limitation open. After return of the complaints by the
Kopargaon Court, as directed by this Court in the aforesaid criminal
applications, the respondent-complainant has presented two
separate complaints before the Magistrate, Ahmednagar, within three
days from the date of return of the complaints by the Kopargaon
Court. Learned counsel submits that if there is non compliance of
the provisions of Sections 200 to 204 of Cr.P.C., as observed by the
learned Additional Sessions Judge, Ahmednagar, the learned
Additional Sessions Judge has rightly directed the Magistrate,
Ahmednagar to proceed further in accordance with the provisions of
Sections 200 to 204 of Cr.P.C. Learned counsel submits that no
interference is required. There is no substance in both the petitions
and the writ petitions are required to be dismissed.
6. On careful perusal of the impugned judgment and order, it
appears that the petitioner-accused has challenged the order passed
by the Magistrate, Ahmednagar on two grounds, firstly, that the
Magistrate, Ahmednagar should not have taken the cognizance of
the case without condoning the delay and since the respondent-
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complainant had not filed application for condonation of delay, the
complaint ought to have been dismissed and secondly, without
complying with the provisions of Section 200 of Cr.P.C. the
Magistrate, without issuing any process, issued summons of
appearance to the petitioner accused.
7. It is a part of record that, as per the order passed by this
Court in above mentioned criminal applications, the learned
Magistrate at Kopargaon returned the complaints to the
respondent/complainant for presenting the same before the court
having territorial jurisdiction to try and entertain the said complaints.
Accordingly, within three days of the return of complaints, the
respondent-complainant has presented two separate complaints
before the learned Magistrate, Ahmednagar. The learned Additional
Sessions Judge, in its impugned judgment and order, has referred to
the provisions of Section 14 of the Limitation Act and observed that
the time spent in Kopargaon Court must be excluded and upon such
exclusion, the complaints are within a period of limitation. However,
learned Additional Sessions Judge has kept that point open and,
further directed the trial court to consider that point, if raised by either
of the parties before it or suo-moto. So far as the order of issuance
of summons directly to the petitioner-accused is concerned, the
learned Additional Sessions Judge has rightly quashed and set aside
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the order passed by the Magistrate, Ahmednagar to that extent. The
learned Magistrate without complying with the provisions of Section
200 of Cr.P.C. has passed the order with observation that since the
complaints have been transferred to his Court, the order passed
earlier in the complaints would remain as it is and that no order of
issuance of process is required to be passed. This approach of the
Magistrate is completely illegal and the Additional Sessions Judge
has therefore, rightly interfered in the said order.
8. The cases cited and relied upon by learned counsel for the
petitioner are not relevant for the issue involved in the present writ
petitions. I do not find any fault in the order passed by the learned
Additional Sessions Judge in the aforesaid two criminal revision
applications. No interference is required. There is no substance in
the writ petitions. Both criminal writ petitions are hereby dismissed.
Rule discharged.
( V. K. JADHAV, J.)
rlj/
