Smt. Ratnamala D/O. Shivkumar ... vs Sujata W/O. Jaywant Kawalkar
2017 Latest Caselaw 1621 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                                   NAGPUR BENCH : NAGPUR



Criminal Writ Petition No. 140 of 2017



Petitioners             :          1.   Smt Ratnamala d/o Shivkumar Bajpai,

                                   @ Ratnamala w/o Raju Prasad, aged about

                                   49 years, Occ: service, resident of Omkar

                                   Apartments, Near Basket Ball Ground, 

                                   Shivaji Nagar, Nagpur

                                   2. Neelima Bawane w/o Kishor Bawane, 

                                   aged about 49 years, Occ: service, resident

                                   of 128, Bajaj Nagar, Nagpur

                                   3. Praveen Dattatraya Bhange, aged about

                                   46 years, Occ: service, resident of EWS/45,

                                   Somwari Quarters, Raghuji Nagar, Nagpur

                                   versus

Respondent              :          Sujata w/o Jaywant Kawalkar, aged about

                                   47 years, Occ: Business, resident of Plot No.

                                   354, Hanuman Nagar, Nagpur




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Shri Pankaj Dube, Advocate for petitioners 

Shri  Uttam Gaikwad, Advocate for respondent 

                                          ----------

Criminal Writ Petition No. 141 of 2017

Petitioner : Kishor son of Ganpat Bawane, aged about 53

years, Occ : Business, resident of 128, Bajaj

Nagar, Nagpur

versus

Respondent : Sujata wife of Jaywant Kawalkar, aged about

47 years, Occ: Business, resident of 354, Hanuman

Nagar, Nagpur

Shri Pankaj Dube, Advocate for petitioners

Shri Uttam Gaikwad, Advocate for respondent

Coram : S. B. Shukre, J

Dated : 11th April 2017

Oral Judgment

1. Rule. Heard forthwith by consent of parties.

2. Petitioners in Criminal WP No. 140 of 2017 are accused nos.

2 to 4 while petitioner in Criminal WP No. 141 of 2017 is accused no. 1 in

Regular Criminal Case No. 762 of 2007 filed by the respondent before the

learned Magistrate. Basically, what is challenged in this writ petition is

the order passed on 1.10.2016 by the Judicial Magistrate, FC, Court No.

2, Nagpur on the ground that this order of issuance of process as against

the present petitioners could not have been passed when respondent

(original complainant) has not complied with the order passed by the trial

Court directing issuance of summons to these petitioners on 25.6.2008.

3. Shri Pankaj Dube, learned counsel for the petitioners submits

that the order passed on 25.6.2008 is an order of issuance of process to

these petitioners and it is a conditional order made subject to payment of

process fees. He further submits that as per sub-section (4) of Section

204 of the Code of Criminal Procedure, if the process fees are not paid

within the reasonable time and this reasonable time is between the date

on which such an order is passed and the next date fixed in the matter,

the learned Magistrate must dismiss the complaint. He placed his reliance

upon Rajaram v. Sundram and ors reported in 1995 Cri. L. J. 3418. He

further submits that as process fees were not paid at all, the learned

Magistrate should have dismissed the complaint and ought not to have

passed order of issuance of process on 1.10.2016 below exhibit 1.

According to learned counsel for the respondent, the ground of challenge

is untenable for the reason that there is no order as such passed by the

trial Court on 25.6.2008. He points out that the so-called order is a

noting taken in the order-sheet which is signed by the Presiding Officer,

but it would not amount to any order of issuance of process in absence

actual and separate order passed in the matter.

4. On going through the order dated 1.10.2016 the order

impugned herein, as well as order dated 25.6.2008, I find that the

impugned order cannot be equated with the so-called order passed on

25.6.2008. The impugned order is in terms , "Issue process against

accused no. 1 to 5 for Sections 120 (B), 468, 471 IPC" passed below

exhibit 1 "whereas the so-called order dated 25.6.2008 is to the effect

"Issue summons to accused no. 2 to 5 on P.F." made in the order-sheet or

roznama dated 25.6.2008. This so-called order dated 25.6.2008 is

actually in the nature of a noting taken in the order-sheet, which is

admittedly signed by the learned Magistrate. A noting taken in the order-

sheet is a reflection of happenings in the Court and order-sheet is a mirror

of what has happened and what has been transacted as a court business

and if there is no order passed as a part of court business, whatever

noting taken in the order-sheet or roznama, cannot be considered as

equivalent to order of the Court. However, learned counsel for the

petitioners does not agree with this proposition although it is a settled

one. He has tried to support his disagreement by referring to the

judgment rendered by the Patna High Court in the case of Nand Kumar

Sinha v. Emperor reported in AIR 1937, Patna, 534. In this case, the

Patna High Court has held that an order-sheet being record of the act of

judicial officer, is a "public document" and the presumption is that it is

genuine. There can be no two opinions about this proposition of law. An

order-sheet is certainly a public document and it is also the record of an

act of a public judicial officer and, therefore, a presumption that it is

genuine, though rebuttable, would always be attached to it. This is what I

have held while discussing about the settled principle of law laying

down that the order-sheet is only a mirror of various acts of a public

judicial officer which view is also found to be taken by the Patna High

Court. Therefore, this case instead of supporting the case of the

petitioners, would strengthen the case of the respondent. It is an

admitted fact that no order issuing summons to the accused persons

(petitioners), though noted in the order-sheet of 25.6.2008, finds place

below exhibit 1 or on any other application or document forming part of

record of the court. Thus, a noting taken in the order-sheet could not be

considered as the order of the Court itself.

5. If there is no order passed by the trial Court regarding

issuance of summons on 25.6.2008, the question of dismissal of complaint

for non-payment of process fees by the original complainant (respondent

no. 1) would not arise. It would have been so had there been any order

asking for payment of process fees, actually passed by the Court below

exhibit 1 or any other application filed in that regard, as a part of

transacting of court business. But, the later order passed on 1.10.2016

does not ask for payment of process fees. Hence, the judgment of Madras

High Court in the case of Rajaram v. Sundram & ors (supra) wherein it

is held that if process fees is not paid within reasonable time, it would be

justifiable for the Court to order dismissal of the complaint, would have

no application to the facts of the present case.

6. In the circumstances, I find no substance in the petitions and

the same deserve to be dismissed. Both the petitions are accordingly

dismissed. Rule discharged.

S. B. SHUKRE, J

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