M/S Umedmal Bhikulal A Registered ... vs Saibaba Trading Com. Thro. Its ...
2016 Latest Caselaw 2299 Bom

                                                              Cri.Appln.No.3714/2015
                                            1




                                                                              
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                                   BENCH AT AURANGABAD




                                                      
                      CRIMINAL APPLICATION NO.3714 OF 2015




                                                     
     M/s Umedmal Bhikulal,




                                         
     A registered partnership firm,
     through its Partner     
     Smt. Prema Kantichand Golecha
     through her G.P.A. Holder
     Rajendra s/o Kantichand Golecha
                            
     Age 47 years, Occ. Business,
     R/o Parbhani Road,Basmath,
     Tq. Basmath, District Hingoli   ...              APPLICANT
      


              VERSUS
   



     1.       Saibaba Trading Company,
              Through its Prop.
              Sanjay R. Agrawal,





              Age major, Occ. Business,
              R/o Shiradshahapur,
              Tq. Aundha (N),
              District Hingoli

     2.       The State of Maharashtra





              (Copy served upon P.P.
              High Court,
              Bench at Aurangabad)              ...   RESPONDENTS


                                      .....
     Shri S.S. Rathi, Advocate for applicant
     Shri P.N. Kutti, A.P.P. for respondent/ State
                                      .....




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                                                                 Cri.Appln.No.3714/2015
                                               2




                                                                                
                                      CORAM:       A.I.S. CHEEMA, J.

                                      DATED:       5th May, 2016.




                                                        
     ORAL JUDGMENT :




                                                       

1. Heard counsel for the applicant - original complainant

and learned A.P.P. for respondent No.2/ State. In this matter,

this Court earlier issued notice to the respondent No.1 - original

accused. However, now it is noticed that, in the trial Court, the

complaint came to be dismissed even before the process was

issued. At the stage of issue of process, the procedure does not

contemplate hearing the accused. As such, it is not necessary to

further pursue this matter for service of notice on the respondent

No.1 - original accused. The limited question is, whether

opportunity should have been given to the complainant to record

his verification. The question of issue of process is to be

considered under Chapter XV of the Code of Criminal Procedure.

The stage of Section 256 of the Code of Criminal Procedure was

not yet reached because Section 256 provides that, if summons

has been issued on complaint and thereafter complainant

remains absent, the Magistrate would have discretion to acquit

the accused.

Cri.Appln.No.3714/2015

2. The learned counsel for the applicant - complainant

has tendered across the bar certified copy of application which

was filed on 15.4.2015 for adjournment as the complainant had

some difficulty. It was a fresh matter dated 3.3.2015, which had

been registered by the Court of Judicial Magistrate, First Class on

9.3.2015. It is not clear how the Magistrate observed that the

complaint had been filed on 5.2.2015 and proceeded to reject the

application and dismiss the complaint. It was unreasonable on

the part of the trial Court not to give some breathing time to the

complainant especially when the complainant had filed an

application.

3. The effect of the order passed by the trial Court is

that of "discharge" where fresh complaint would not be barred.

However, looking to the fact that the present complaint arises

out of Section 138 of the Negotiable Instruments Act, which

requires filing of a complaint in a particular time after notice has

been issued, it would be appropriate to invoke revisional

jurisdiction by this Court and correct the orders which have been

passed by the trial Court. The trial Court, without recording

verification, passed orders stating that the complaint was being

dismissed for want of verification under section 203 of the Code

Cri.Appln.No.3714/2015

of Criminal Procedure. Section 203 of the Code of Criminal

Procedure can be invoked only after considering the statement

on oath, if any, of the complainant and of the witnesses, and the

result of the enquiry or investigation, if any, under section 202.

The said stage was yet not reached. Thus, the impugned order

cannot be maintained.

4.

The earlier order issuing notice to respondent No.1 -

original accused, are recalled, and invoking revisional jurisdiction,

the impugned order dated 15.4.2015 passed by the Judicial

Magistrate, First Class, Kalamnuri are quashed and set aside.

The complaint is restored. The trial Court shall give opportunity

to the complainant and record verification as contemplated in

Chapter XV of the Code of Criminal Procedure. The complainant

shall appear before the trial Court for verification on 23rd May

2016. This application is accordingly finally disposed of.

(A.I.S. CHEEMA, J.)