Bombay High Court
Smt. Pushpa Ashok Singh Thakur vs Kishan Karamchand Lalwani And ... on 3 July, 2017
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL WRIT PETITION NO. 224 OF 2017
1. Smt.Pushpa Ashok Singh Thakur,
Director-AGT Infrastructure Private Limited,
R/o Shop No.16,Haveli Shopping Complex,
Opposite Zilla Parishad,Main Road,
Chandrapur-442 401. .....PETITIONER
...V E R S U S...
1. Kishan Karamchand Lalwani,
Aged about 49 years,Occ-business,
r/o 91, HB Estate, Sonegaon,
Nagpur-400 025.
2. AGT Infrastructure Private Limited,
through its Managing Director,
Ashoksingh Gulabsingh Thakur.
3. Ashoksingh Gulabsingh Thakur,
The authorised signatory of
AGT Infrastructure Private Limited,
R/o Shop No.16,Haveli Shopping Complex,
Opposite Zilla Parishad, Main Road,
Chandrapur-442 401 ...RESPONDENTS
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Shri R.M.Bhangde,Advocate for petitioner.
None for the respondents.
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CORAM:- V. M. DESHPANDE, J.
DATED :- JULY-3 ,2017
ORAL JUDGMENT
Rule. Rule is made returnable forthwith. Heard Shri
R.M.Bhangde,learned counsel for the petitioner. None appeared
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for the respondents though duly served.
2. This Court on 25/4/2017 issued notices to the
respondents for final disposal and notices were made returnable
on 6/6/2017. On 6/6/2017 Miss Gupta, learned advocate
appeared on behalf of respondent no.1 and a statement was
made on her behalf that she will be filing vakalatnama on behalf
of respondent no.1 Kishan Karamchand Lalwani. Her statement
was accepted. The Court observed in view of her statement that
service of the respondent no.1 is complete and thereafter matter
was kept after service of the respondent nos. 2 and 3. The office
note dated 16/6/2017 shows that the respondent nos. 2 and 3
were also served who are co-accused.
3. Today, in the morning when the matter was called
nobody appeared for any of the respondents nor Miss Gupta,
learned advocate appeared therefore, the matter was kept in
second half. In second half nobody has appeared for the
respondents nor there is any request on their part for the
adjournment therefore, in view of the order dated 25/4/2017 the
matter is decided finally.
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4. By the present writ petition, the petitioner is
challenging the order passed by learned Assistant Sessions Judge,
Nagpur dated 8/2/2017 below Exh.1 in Misc.Cri. Application
No.1188/2014 by which learned Judge rejected the application
for condonation of delay filed on behalf of the petitioner. Learned
counsel for petitioner pointed out that respondent no.1 is the
original complainant. Present petitioner is one of the directors of
respondent no.2 and respondent no.3 is authorised signatory of
the respondent no.2.
5. A complaint to prosecute the petitioner and respondent
nos. 2 and 3 for the offence punishable under Section 138 of
N.I.Act was filed on behalf of respondent no.1 in the Court of
learned J.M.F.C.Nagpur. The said case was registered as Criminal
Complaint Case No.3255/2011. Learned Judge vide order dated
10/8/2011 issued process against the present petitioner and co-
accused for the offence punishable under Sections 138 and 142 of
the Negotiable Instruments Act.
6. learned counsel for petitioner thereafter invited my
attention to the judgment and order passed by this Court on
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20/2/2014. Perusal of the judgment dated 20/2/2014 in Criminal
Application (APL) No.287/2012 shows that present petitioner
approached to this Court by invoking powers under Section 482 of
the Code of Criminal Procedure for challenging the order dated
10/8/2011 passed by the learned Magistrate by which the process
was issued against the petitioner. The said petition was filed on
20/4/2012. The petition was decided on 28/2/2014. The
judgment of this Court in Criminal Application (APL)No.287/2012
shows that this Court has refused to exercise its inherent powers
for quashing the process in view of availability of the alternate
remedy of filing revision.
7. According to learned counsel for petitioner after
dismissal of the earlier application a revision was preferred before
the revisional Court since the revision was barred by limitation an
application under Section 5 of the Limitation Act, was also filed.
The said application was registered as Misc.Criminal Application
No.1188/2014. In the said application it was pointed out by the
present petitioner about the pendency of the proceeding before
this Court, however vide the impugned order the application is
rejected.
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8. The record shows that after the order of issuance of
process was passed by learned Magistrate on 10/8/2011 the said
order was questioned by the petitioner before this Court on
24/2/2012 by invoking the inherent jurisdiction of this Court. The
said proceeding was pending before this Court for about 2 years
and on 20/2/2014 this Court refused to exercise powers under
Section 482 of Code of Criminal Procedure in favour of the
petitioner since it was the view of this Court that petitioner should
first invoke the revisional jurisdiction to question the order of
issuance of process.
9. Thus, for a period of 2 years the matter was pending
before this Court.
10. The time for prosecuting the remedy in wrong Court
has to be considered in view of Section 14 of the Limitation Act.
The perusal of the impugned order shows that the revisional Court
has not considered the said aspect in its true prospective.
Normally, a litigation should not be shunted out on the technical
ground. No doubt, there was a delay in preferring the revision
before the Court below, however in my view the petitioner was
able to point out the reason for delay. Therefore in my view,
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injustice is caused to the petitioner for not permitting her to place
her case before the revisional Court on merit . Hence, I pass the
following order.
ORDER
I) The writ petition is allowed.
ii) The order passed by learned Assistant Sessions
Judge,Nagpur dated 8/2/2017 in Misc.Cri.Application
No.1188/2014 is hereby quashed and set aside.
iii) Misc.Cri.Application No.1188/2014 is hereby allowed.
iv) The revisional Court is directed to register the revision
filed on behalf of the petitioner and shall decide the
same as expeditiously as possible within a period of six
months from the receipt of this order.
v) learned counsel for petitioner submitted that the
petitioner will appear before the learned revisional
Court on 10/7/2017 and will abide with its further
directions.
vi) With this rule is made absolute in the above terms with
no order as to costs.
JUDGE
kitey
