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1993 DIGILAW 300 (BOM)

Universal Beverages Ltd v. State of Goa

1993-07-06

K.S.DA SILVA

body1993
JUDGMENT (ORAL) E.S. Da Silva, J. - Leave to amend. 2. This revision is directed against the Order of the learned judicial Magistrate, First Class, Panaji, dated 10th March, 1993 whereby the learned Magistrate has dismissed the petitioners complaint bearing Criminal Case No. 263/92/B on the ground of non-prosecution on the part of the petitioners. 3. In short the case of the petitioners is that sometime in January/February, 1992 the petitioners had supplied to one Ajit Narayan Kawlekar, proprietor of M/s. Kawlekar Agency, Pnoda, soft drinks worth Rs. 46,748-75. The said Kawlekar issued cheques to the petitioners for the said amount but when the cheques were presented for clearance to the Bank they bounced because the Bank informed its inability to honour the said cheques for insufficiency of funds. This was on 20.5.1992. There upon on 3.6.1992 the petitioners issued the statutory notice to the said Ajit requiring him to pay the amount. 4. As nothing was heard form him till 16.7.1992 the petitioners filed a complaint against Kawlekar in the Court of Judicial Magistrate, First Class, Panaji. However, to his utter surprise on 11.3.1993 the petitioners learnt about the dismissal of the case by the trial Court for want of prosecution. 5. Shri R.M.S. Khandeparkar, learned counsel for the petitioners, has invited my attention to the Roznama of the proceedings in the said Criminal Case No. 263192/B wherein it is seen that the complaint which is said to have been filed by him in the Court of Judicial- Magistrate, First Class, Panaji, on 16.7.1992 was allotted to 'B' Court on 18.7.1992. A subsequent entry in the said Roznama points out that the said complaint was fixed for verification on 23.10.1992, that is to say, after about more than three months from the time of its allotment to the 'B' Court. Strongly the next en try shows that the matter was not taken up by the Court on 23.10.1992 nor any order adjourning the hearing or the case for verification to any further date was passed by the concerned Magistrate. However, the entry on 10.3.1993 amounts to the order of dismissal under challenge whereby the Magistrate after observing that till that date neither the complainant nor his advocate had approached the Court, ordered that the complaint stands dismissed for non-prosecution. However, the entry on 10.3.1993 amounts to the order of dismissal under challenge whereby the Magistrate after observing that till that date neither the complainant nor his advocate had approached the Court, ordered that the complaint stands dismissed for non-prosecution. The learned counsel has rightly urged that such procedure and the order passed by the Magistrate in the circumstances is utterly irregular and unwarranted. 6. Shri Khandeparkar has contended that at no time notice was given to the petitioners informing then about the dine fixed for verification which is to be held on 22.10.1992, that is to say, more than three months after the complaint was filed as was already mentioned above. Inspite of that the record shows that even on that date the versus verification could not be held evidently because the petitioner was not aware of that date. Being so the petitioner could not be expected to be present to verify the complaint either on 23.10.1992 or any other subsequent date. The Order passed by the learned Magistrate dismissing the complaint for went of prosecution was, therefore, bad and illegal. 7. There is doubt a lot of substance in the grievance made by the petitioners. In the facts and I circumstances of the case the Order passed by the, learned Magistrate reveals obviously non-application of mind. Once the complaint was lodged it was the bounden duty of the magistrate either to immediately get the complaint verified or in case this was not possible for reasons to be recorded to give any other date after due notice issued to the complainant. In the instant case it is seen that the petitioners were kept totally in the dark about such further date. This being the position there was no reason at all to hold that the absence of the complaint/petitioners in the Court for the purpose of getting the complaint verified would amount to non-prosecution. The Order of the learned Magistrate is therefore grossly irregular and without jurisdiction, being thus bound to be modified. 8. Shri Bhobe learned Public Prosecutor, has fairly stated that he has nothing to any about this case and that he leaves to the Court to decide the matter as per the law. 9. In the result the revision is allowed and the Order of the learned Magistrate is hereby quashed and set aside. 8. Shri Bhobe learned Public Prosecutor, has fairly stated that he has nothing to any about this case and that he leaves to the Court to decide the matter as per the law. 9. In the result the revision is allowed and the Order of the learned Magistrate is hereby quashed and set aside. The matter is remanded back to the learned Judicial Magistrate, First Class, Panaji, to be disposed to as per the law. Rule is accordingly made absolute in the above terms. Petition allowed.