Mohammad Firoz Mohammad Siraj vs The State Of Mha. Thr. Pso Ps City ...
2023 Latest Caselaw 405 Bom

                                       1                            23 criwp778.22 (J).odt


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


            CRIMINAL WRIT PETITION NO. 778 OF 2022


PETITIONER                 : Mohammad Firoz Mohammad Siraj,
                             Aged about 38 years, Occu. Business,
                             R/o Dr. Zakir Hussain Marg, Umarkhed,
                             Tq. Umarkhed, Dist. Yavatmal.

                                           VERSUS

RESPONDENTS                 : 1] The State of Maharashtra,
                                 through Police Station Officer,
                                 Police Station, City Kotwali, Akola,
                                 Tq. And Dist Akola.

                              2] Mohammad Hanif Mohammad Ibrahim,
                                 Aged about 63 years, Occu. Business,
                                 R/o Wholesale Kirana Bazaar, Bye-pass,
                                 Akola, Tq. And Dist. Akola.

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          Mr. Aquib M. Haque, Advocate appointed for the petitioner.
          Mr. S. A. Ashirgade, A. P. P. for respondent no.1/State.
          Mr. R. M. Tiwari, Advocate for respondent no.2
---------------------------------------------------------------------------------------------------

                        CORAM : G. A. SANAP, J.

DATE : JANUARY 11, 2023.

ORAL JUDGMENT

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

consent of the learned advocates for the parties.

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2. The order impugned in this petition is dated 30.09.2022

passed by the learned Additional Sessions Judge, Akola in Cri.

Revision Application No. 137/2018 as well as the order dated

02.01.2018 passed by the learned Judicial Magistrate, First Class, Akola

in Misc. Criminal Application No. 1262/2017. The learned Additional

Sessions Judge by the impugned order dismissed the revision

application filed by the petitioner challenging the order dated

02.01.2018 passed by the learned Magistrate issuing process against the

petitioner for the offences punishable under Sections 420, 468, 469

and 471 of the Indian Penal Code.

3. Respondent no.2 on 06.07.2017 filed a complaint/

application under Section 156(3) of the Code of Criminal Procedure

before the learned Chief Judicial Magistrate, Akola and prayed for

direction to the concerned police station to register the first

information report and conduct investigation. The learned Magistrate

was not inclined to grant the prayer for investigation by invoking the

provisions of section 156(3) of Cr.P.C. The learned Magistrate instead

treated the said application as a complaint and directed the police 3 23 criwp778.22 (J).odt

station, City Kotwali, Akola to conduct investigation/enquiry as per

the provisions of Section 202 of the Cr.P.C. Accordingly, enquiry was

conducted by police. The enquiry report came to filed on 17.11.2017.

On the basis of the facts stated in the complaint as well as found

substantiated from the enquiry report, the learned Magistrate was

pleased to issue process against the petitioner for the above mentioned

offences.

4. I have heard Mr. Aquib M. Haque, learned advocate

appointed for the petitioner, Mr. S.A. Ashirgade, learned Additional

Public Prosecutor for the respondent no.1/State and Mr. R. M. Tiwari,

learned advocate for the respondent no.2/complainant.

5. Learned advocate appointed for the petitioner submitted

that application under Section 156(3) of the Cr.P.C. is not

maintainable in the absence of compliance of the provisions of Section

154(3) of the Cr.P.C. Learned advocate further submitted that the

learned Magistrate was, therefore, not right in treating the said

application as a complaint and passing the order for enquiry/ 4 23 criwp778.22 (J).odt

investigation under Section 202 of the Cr.P.C. Learned advocate

further submitted that perusal of the facts stated in the complaint and

the facts disclosed during the course of investigation would indicate

that the dispute between the petitioner and respondent no.3 was of

civil nature. Learned advocate submitted that the civil dispute is

sought to be given a colour of criminal offence. Learned advocate

submitted that prima facie, the offences alleged against the petitioner

have not been made out either on the basis of the complaint,

verification statement of the complaint and the enquiry report.

Learned advocate, therefore, submitted that initially the order passed

by the learned Magistrate issuing process and dismissal of the revision

confirming the said order by the learned Additional Sessions Judge

suffers from patent illegality and therefore, required to be set aside.

6. Learned Additional Public Prosecutor for the State and

the learned advocate for respondent no.2 submitted that no

interference is warranted in the order passed by the learned Magistrate

as well as by the learned Additional Sessions Judge. According to

them, there is sufficient material on record to prima facie establish the 5 23 criwp778.22 (J).odt

basic ingredients of the offences alleged to have been committed by the

petitioner. They further submitted that the facts stated in this petition

cannot be gone into at this stage. The facts stated in the petition at the

most could be said be the defence of the accused.

7. In order to appreciate the rival submissions, I have gone

through the record and proceedings. The nature of transaction which

led to the filing of complaint by the petitioner is set out in the

complaint. Learned Magistrate, after recording verification statement

of the complainant, directed the police to conduct enquiry. Police

conducted enquiry. The enquiry conducted by police revealed that the

respondent no.2 is a wholesale dealer in salt business. The accused

prevailed upon the complainant to sell salt to the persons known to

him. The statements of the purchasers of the salt clearly indicate that

they had paid price of salt sold to them to the accused. It is the main

grievance of the complainant that the accused dishonestly

misrepresented the purchasers of salt and recovered from them the

amount of salt purchased by them and did not pay it to the

complainant. The investigation further revealed that the accused 6 23 criwp778.22 (J).odt

prepared the bills/ receipts when he received the payment from the

purchasers of salt.

8. Perusal of the order passed by the learned Judicial

Magistrate, First Class as well as the order passed by the learned

Additional Sessions Judge in revision would show that all these facts

have been taken into consideration. The defence of the accused, if any,

to meet the averments in the complaint, cannot be taken into

consideration at such a preliminary stage. At such a preliminary stage,

the Court has to see whether there is evidence on record to prima facie

make out the offence alleged to have been committed by the accused.

In my view, on going through the material afresh, it is seen that there is

no substance in this petition. The order of issuance of process is a

reasoned order based on the materials placed on record.

9. In my view, therefore, at this stage, no interference in the

order passed by the learned Judicial Magistrate, First Class, Akola as

well as by the learned Additional Sessions Judge, Akola, is warranted.

The petition accordingly stands dismissed.

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10. This Court appreciates the valuable assistance rendered by

learned advocate Mr. Aquib M. Haque, being an appointed advocate

by the High Court Legal Services Sub Committee, Nagpur for the

petitioner. He is entitled for the remuneration/fees for representing

the petitioner from the High Court Legal Services Sub Committee,

Nagpur, which is quantified at Rs.7,000/-.

11. It is made clear that the observations in this order are

made for deciding the writ petition. The Courts below shall not get

influenced by these observations while deciding the matter on merits.

12. Rule stands discharged.

(G. A. SANAP, J.) Diwale

Digitally signed byPARAG PRABHAKARRAO DIWALE Signing Date:12.01.2023 19:03