Bombay High Court
Dr. Kisanrao S/O. Yadavrao ... vs Changdeo S/O. Khanderao ... on 14 June, 2022
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
922 CRIMINAL APPEAL NO.926 OF 2019
DR. KISANRAO S/O. YADAVRAO GADEKAR
VERSUS
CHANGDEO S/O. KHANDERAO PHATANGARE AND ANR
...
Advocate for Appellant : Mr. P. P. Mandlik H/F Mr. Gandhi Amol S.
APP for Respondent No.2-State : Mr. B. V. Virdhe
Advocate for Respondent No.1 : Mr. Y. H. Lagad H/F Mr. R. R. Karpe
...
CORAM : SMT.VIBHA KANKANWADI, J.
DATE : 14-06-2022
ORDER JUDGMENT :
1. Admit.
2. The appeal is taken up for hearing immediately by consent of
both the parties.
3. Heard learned Advocate Mr. p. p. Mandlik HOLDING FOR Mr. a. s.
Gandhif OR APEPLLANT, LEARNED app Mr. B. V. Virdhe for respondent
No.2-State, and learned Advocate Mr. Y. H. Lagad holding for Mr. R. R.
Karpe for respondent No.1.
4. The appellant is the original complainant and respondent No.1 is
the original accused. The complainant has filed S.C.C.No.600 of 2016
before the learned Judicial Magistrate First Class, Rahata, District
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Ahmednagar, contending that respondent No.1 accused has
committed offence punishable under Section 138 of Negotiable
Instruments Act. It appears that after the verification was recorded,
summons i.e. process was issued against the accused and the
matter was for issuance of summons return thereof and it appears
that it was not received, and therefore, again the complainant had
taken steps for issuance of the summons. On 09-08-2017, as per
the copy of the Roznama, though the complainant was absent he
had already filed an application at Exhibit 7 for issuance of summons
which was allowed and it was the clerical act that was remaining to
actually draw the summons. However, again at Exhibit 8 the
complainant had given application for reissuance of the summons
and then on 31-10-2017 actually it was drawn and was sent for its
service. The next date that was kept was 23-01-2018 and the stage
is also mentioned as "izdj.kkr leUl ;s.ks", that means to receive the
summons. However, suddenly on 23-01-2018 an order was passed
on Exhibit 1 and it appears that the Court directed that unready
matters list should be prepared for passing order under Section 256
of Cr.P.C., and then the matter was kept. If we consider the
Roznama as it is no next date was given on 23-01-2018 and then
suddenly on 17-02-2018 the impugned order has been passed
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stating that the complainant is absent since long and the matter was
kept for dismissal order as per the order dated 23-01-2018. In fact,
when there was no date in between 23-01-2018 and the 17-02-
2018, yet the learned Magistrate observes that, "But thereafter
complainant is consistently absent. Even today complainant is called
repeatedly but he and his pleader remained absent." This order
appears to be passed with sheer negligence without looking after the
Roznama. Unnecessary further observations have been made by the
concerned Judicial Magistrate First Class that complainant not taking
further steps for effective progress. It was because of his own staff
the summons was not issued and it was in fact his duty to supervise
his staff and get the summonses prepared and send it for its service.
Magistrate cannot say that it is not his job. Supervision over his
Court is the integral part of his duty. A complaint can be dismissed
under Section 256 of Cr.P.C. for the absence of a complainant only if
the matter was for taking effective steps. If the matter is for return
of the summons, then it cannot be said that the presence of the
complainant was required on that day. The observations in Baliram
Ramchandra Patil Vs. Ashok Pundalik Patil, reported in 2017 DGLS
(Bom.) 2160 : 2017 ALL M.R. (Cri) 3089, will have to be allowed to
be incorporated in the present decision wherein it has been observed
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that :-
"On the face of record the impugned order is not
sustainable in law for the sole reason that stage has not
reached to exercise power under section 256 of the Code
of Criminal Procedure to dismiss the complaint and
acquit the accused. The order of the dismissal of the
complaint and acquittal of accused under Section 256 of
Cr.P.C. can be passed only after the process was issued
and the accused had appeared in the matter but the
complainant failed to appear on the date listed for
hearing of the case. In the instant case
respondent/accused has not served nor appeared before
the Court. So also the case was not listed for hearing.
The case was lying at the stage of the service of the
summons. In default of taking steps at the most the
complaint could have been dismissed by exercising the
powers under section 204(4) of the Code of Criminal
Procedure and not in exercise of powers under section
256 of the Code of Criminal Procedure. Therefore, the
impugned orders is not sustainable in law. Since the
impugned order could not have been passed in exercise
of the powers under Section 256 of the Code of Criminal
Procedure the order deserves to be set-aside."
The impugned order dated 17-02-2018 is patently illegal, and
therefore, deserves to be set aside.
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5. Now in view of setting aside of the order dated 17-02-2018 the
matter would be restored on the file of Judicial Magistrate First
Class, however a fact for which this Court cannot shut its eyes is,
that the accused is resident of Takali Taluka Rahuri, District
Ahmednagar and certainly for Rahuri Taluka there is another Court
i.e. Judicial Magistrate First class, Rahuri. Rahata is different Taluka,
and therefore, the learned Judicial Magistrate First Class, Rahata on
whose file the complaint would be restored, should consider that the
accused is not residing within his jurisdiction, and therefore, there
should be a compliance under Section 202 of Cr.P.C., and for that
purpose the order of issuing process against the accused passed on
03-03-2016 is also set aside. The learned Magistrate should take up
the steps once again after the verification, get the compliance of
section 202 of Cr.P.C. done and then proceed with the matter
further. Since record and proceedings is there, perusal of the order
below Exhibit 1 dated 16-03-2016 would show that there is no
compliance of Section 202 of Cr.P.C. and the leaned Magistrate did
not even took into consideration the fact that the accused was
residing beyond his jurisdiction. This Court is aware that respondent
No.1 has not challenged the order dated 16-03-2016, however,
when this Court is restoring the complaint, then its legality and
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corretness will have to be considered, and therefore, necessary
order deserves to be passed. Accordingly, following order is passed.
ORDER
1) Appeal stands partly allowed.
2) The order passed by the learned Judicial Magistrate
First Class, Rahata, District Ahmednagar, on 17-02-2018
below Exhibit 01 in S.C.C.No.600 of 2016 is hereby set
aside. The said complaint is restored on the file of
learned Judicial Magistrate Fist Class, Rahata.
3) The order passed below Exhibit 1 issuing summons
on 16-03-2016 stands set aside.
4) The learned Judicial Magistrate First Class, Rahata,
District Ahmednagar, to get the compliance under
Section 202 of Cr.P.C. done in view of the fact that the
accused is residing beyond his jurisdiction and thereafter
take up the procedure as per law.
5) Record and proceeding be sent back.
(SMT. VIBHA KANKANWADI)
JUDGE
vjg/-.
