Bombay High Court
Deepak S/O Prabhudayal Dajjuka vs Ajay Shivshankar Khemka And ... on 7 November, 2017
Bench: A.S. Chandurkar
225-J-APL-819-15 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO.819 OF 2015
Deepak s/o Prabhudayal Dajjuka,
aged 43 years, Occ. Business,
r/o Jaistambh Chowk, Station Area,
Murtizapur, Tq. Murtizapur,
Dist. Akola ... Applicant.
-vs-
1. Ajay Shivshankar Khemka,
aged major, Occ. Business,
r/o Vidharba Tractors, Murtzapur Road,
Akola.
2. Pankaj Ratanlal Bagadia,
aged major, Occ. Business,
r/o Radhe Nagar, Near Jain Building,
Akola.
3. State of Maharashtra,
Thr. P.S.O. Civil Lines,
Akola. ... Non-applicants.
Shri Gautam Chatterjee, Advocate for applicant.
Shri J. B. Gandhi, Advocate for non-applicant Nos.1 and 2.
Shri S. M. Ghodeswar, Additional Public Prosecutor for non-applicant
No.3/State.
CORAM : A. S. CHANDURKAR, J.
DATE : November 07, 2017
Oral Judgment :
This criminal application filed under Section 482 of the Code of
Criminal Procedure, 1973 (for short, the Code) takes exception to the
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judgment of the learned Sessions Judge Akola in Criminal Revision
No.46/2013. By the impugned judgment the order passed by the learned
Magistrate issuing process against the accused has been set aside.
2. The applicant herein is the original complainant who had filed a
complaint under Sections 379, 420, 427 read with Section 34 of the Indian
Penal Code. As per the complaint, the complainant had purchased a three
wheeler minidor in the year 2005. On 24/04/2006 said vehicle was taken to
the showroom of the accused persons for servicing. The complainant was
informed the vehicle could be taken back after 6 pm. The complainant in
the evening made payment of Rs.466/- and took back his vehicle. After
proceeding for some distance, the complainant found that the vehicle's fan
belt was missing. The vehicle did not start and therefore it had to be tied to
a rope for being taken away. According to the complainant certain parts of
the vehicle were stolen while the vehicle was under servicing. On that basis,
complaint came to be filed. Statement of the complainant was recorded on
25/02/2009. The proceedings had come before this Court in Criminal
Application No.132/2011 filed at the instance of the present applicant. By
order dated 01/08/2012 the trial Court was directed to decide the complaint
in accordance with law.
3. On 14/12/2012, the learned Magistrate issued process against the
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accused. The non-applicant Nos.1 and 2 challenged this order by filing a
revision application before the Sessions Court. By the impugned judgment
the revision application was allowed and the complaint was dismissed.
Hence the complainant has filed the present application.
4. Shri G. Chatterji, learned counsel for the applicant submitted that
the learned Judge of the Sessions Court committed a jurisdictional error by
examining the probable defence of the accused persons while considering the
challenge to the order issuing process. It was submitted that at that stage, it
is not necessary to consider the defence version nor is the evalaution of the
evidence of the complainant necessary. The process having been issued by
the learned Magistrate after finding a prima facie case having been made out,
that order ought not to have been interfered with by the Sessions Court.
Relying upon the judgment of the Honourable Supreme Court in (2015) 3
SCC 424 Sonu Gupta v. Deepak Gupta and ors. it was submitted that the
impugned order was liable to be set aside and the complaint ought to be
decided on merits.
5. Shri J. B. Gandhi, learned counsel for the non-applicant Nos.1
and 2 supported the impugned judgment. According to him, the learned
Magistrate in a mechanical manner had issued process. According to the
complainant himself, the vehicle had been taken away after its servicing.
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After proceeding for about 18 kms, the complainant realized that certain
parts of the minidor had been removed. This was not possible as the vehicle
would not have started in absence of those parts. It was therefore submitted
that it was rightly found by the Sessions Court that there was falsity in the
case of the complainant. It was thus submitted that there was no reason to
interfere with the impugned order.
Shri S. M. Ghodeswar, learned Additional Public Prosecutor
appeared for non-applicant No.3/State.
6. After hearing the learned counsel for the parties and after
perusing the material on record I find that the impugned judgment
dismissing the complaint is not sustainable.
7. In Sonu Gupta (supra) it has been held that at the stage of
issuance of process, the Magistrate is not required to consider the defence's
version. In paragraph 8 thereof it has been observed thus :
" 8. ... At the stage of cognizance and summoning the Magistrate is
required to apply his judicial mind only with a view to take cognizance of
the offence, or, in other words, to find out whether prima facie case has
been made out for summoning the accused persons. At this stage, the
learned Magistrate is not required to consider the defence version or
materials or arguments nor is he required to evaluate the merits of the
materials or evidence of the complainant, because the Magistrate must
not undertake the exercise to find out at this stage whether the materials
will lead to conviction or not."
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8. From the aforesaid it is clear that what is required to be
considered is whether a prima facie case had been made out for proceeding
with the complaint. The same having been done by the learned Magistrate
and process having been issued, it was not open for the Sessions Court to
have examined the probability in the case of the complainant or the likely
defence.
9. Perusal of the impugned order indicates that the Sessions Court
has after considering the material on record drawn an inference that there
was falsity in the statement of the complainant. It has then observed that
there was also a possibility that some other persons than the accused persons
had removed the parts from the complainant's vehicle. It did not rule out
possibility of false implication. I find that the Sessions Court has taken into
consideration aspects which were not permissible so to be taken into
consideration at the stage when only the order issuing process was under
challenge. The impugned judgment in the light of the law referred to
herein above is thus not sustainable. It is liable to be set aside as having
been passed by exceeding the revisional jurisdiction.
10. Accordingly the following order is passed :
(i) The order dated 19/10/2015 passed by learned Additional
Sessions Judge, Akola in Criminal Revision Application No.46 of
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2013 is quashed and set aside.
(ii) The proceedings in Regular Criminal Case No. 454 of 2006 are
restored to the file of learned Judicial Magistrate, First Class,
Akola.
(iii) The complaint shall be decided on its own merits in accordance
with law expeditiously. It is clarified that the observations made
in this judgment are only for deciding the present proceedings and
the same shall not influence the trial.
At this stage, learned counsel for non-applicant Nos.1 and 2
prays that the effect of this order be stayed for a period of four
weeks from today. This request is opposed by the learned
counsel for the applicant. Considering the said request, the
learned Magistrate shall proceed with the consideration of the
aforesaid complaint in the first week of January 2018.
JUDGE
Asmita
