Gajendra Sudhakar Khedkar vs Dilip Shivramji Thorat And ...
2023 Latest Caselaw 1343 Bom

                                       1                             CRIWP771.22 (J).odt


     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
              : NAGPUR BENCH : NAGPUR.


            CRIMINAL WRIT PETITION NO. 771 OF 2022


PETITIONER                 : Gajendra Suchakar Khedkar,
                             Aged about 56 years, Occu. Business,
                             R/o Adharsha Colony, Sambhaji Nagar,
                             Akola, Tq. & Dist. Akola

                                           VERSUS

RESPONDENT                  : 1] Dilip Shivramji Thorat,
                                 Aged about 60 years, Occu. Business,
                                 r/o Kaulkhed Bolabjibaba Road,
                                 Near Saramata Mandir, Asma Beauty Parlour,
                                 Pawsale layout, Akola, Tq. & Dist. Akola.

                              2] State of Maharashtra,
                                 through Police Station Officer,
                                 Police Station, Khadan, Akola.

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          Mr. Sukrut S. Sohoni, Advocate for the petitioner.
          Mr. H. D. Dubey, A.P.P. for the respondent no.2/State.
          None for the respondent no.1
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                        CORAM : G. A. SANAP, J.

DATE : FEBRUARY 08, 2023.

ORAL JUDGMENT

1. RULE. Rule made returnable forthwith. Heard finally by

consent of the learned advocate for the petitioner and learned 2 CRIWP771.22 (J).odt

Additional Public Prosecutor for respondent no.2/State. Respondent

no.1/accused remained absent, though served.

2. In this writ petition, challenge is to the judgment and

order dated 18.03.2020 passed by the learned Sessions Judge, Akola,

whereby the learned Judge was pleased to dismiss the revision

application challenging the order passed by the learned Judicial

Magistrate, First Class, (Court No.9), Akola, dated 21.09.2017 in

Regular Criminal Case No. 114/2015. Learned Magistrate by the order

dated 21.09.2017 had dismissed the private complaint filed by the

petitioner/complainant and discharged the accused/respondent no.1

for the offences punishable under Sections 420, 468, 472 read with

Section 109 of the Indian Penal Code.

3. Learned advocate for the petitioner submitted that the

finding recorded by the learned Sessions Judge, Akola that the revision

was not maintainable against the order of dismissal, is contrary to law.

Learned advocate submitted that the rights of the parties by dismissal

of the complaint and discharge of the accused, were finally decided.

3 CRIWP771.22 (J).odt

Learned advocate pointed out that the order of dismissal of the

complaint and discharge of respondent no.1/accused, by invoking the

provisions of Section 245 sub-section 2 of the Code of Criminal

Procedure, was not an appealable order. It is submitted that against

this order, a revision would lie.

4. As far as the merits are concerned, learned advocate

submitted that there was error on the part of the learned Sessions Judge

while rejecting the application on merits as well. Learned advocate

took me through the record and proceeding and submitted that the so

called defaults on the part of the complainant, recorded in paragraph

10 of the impugned judgment, were committed in 2016 and not

immediately preceding the date of passing of the order. Learned

advocate submitted that the complainant regularly attended the

complaint proceeding, however on 2-3 dates, the learned Presiding

Officer was on leave. Learned advocate further submitted that the

application made for setting aside the dismissal order on the very same

day and date, indicates due diligence on the part of the complainant in

prosecuting the complaint. Learned advocate submitted that the 4 CRIWP771.22 (J).odt

learned Magistrate was required to see that the matter was decided on

merits. Learned advocate submitted that the petitioner/complainant

cannot be denied an opportunity to take his grievance to a logical

conclusion.

5. Learned Additional Public Prosecutor for the State

submitted that on merits, the learned Sessions Judge found that the

petitioner/complainant was at fault. Learned APP, by drawing my

attention to the roznama and other record, submitted that the

complainant was at fault.

6. Learned advocate for the petitioner pointed out that a

civil suit filed by the complainant for specific performance of the

contract arising out of the transaction, which is the subject matter of

the complaint, was decreed. In my view, while considering this

petition, this fact cannot be glossed over. Prima facie, the question that

needs to be addressed is whether there is mistake on the part of the

learned Judge while rejecting the revision application on merits ? On

going through the observations made in paragraph 10 of the impugned 5 CRIWP771.22 (J).odt

judgment and order, it is seen that these observations and findings are

supported by the record. For some reason or the other and that too

best known to the complainant, there was a failure on the part of the

complainant to adduce evidence. Since the case was instituted

otherwise than on police report, the complainant was required to

adduce his evidence and the evidence of the witnesses before framing

the charge.

7. It is seen on a perusal of the roznama of the trial Court

that the learned Magistrate had granted sufficient opportunity and

indulgence to the complainant. The complainant remained absent for

unexplained reasons. It, therefore, cannot be said that the complainant

was denied an opportunity to prosecute his complaint in proper

perspective. Roznama of some of the dates, of which reference has

been made in paragraph 10 of the impugned judgment, would show

that on four to five occasions, cost was imposed on the complainant for

not taking timely steps for prosecution of the complaint. Learned

Sessions Judge, taking all these factual aspects into consideration,

found that there was no illegality on the part of the learned Judicial 6 CRIWP771.22 (J).odt

Magistrate, First Class, Akola while dismissing the complaint and

discharging the accused. On going through the record afresh, I am of

the view that on facts, no case was made out by the complainant to

grant indulgence of the nature sought for in the revision petition.

8. Even if it is assumed for the sake of argument that the

observation of the learned Sessions Judge that the revision against the

impugned order is not maintainable, is found to be erroneous, in my

view, the same could not be the ground to allow this petition. In fact,

considering the nature of the order passed by the learned Magistrate in

a case instituted on a complaint by invoking the provisions of Section

245(2) of the Cr.P.C., the order of discharge can be challenged by filing

revision and not by filing an appeal. The order of discharge under

Section 245(2) of Cr.P.C. unlike an order under Section 256 of the

Cr.P.C., has no effect of acquittal. Therefore, even if it is held that the

observations on this point are not sustainable, it cannot be said that the

case in question is a fit case to warrant interference in the well reasoned

order of the learned Sessions Judge on merits.

7 CRIWP771.22 (J).odt

9. Therefore, I do not see any substance in the petition. The

petition deserves to be dismissed and it is accordingly dismissed. Rule

stands discharged.

(G. A. SANAP, J.) Diwale

Digitally signed byPARAG PRABHAKARRAO DIWALE Signing Date:09.02.2023 15:54