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2010 DIGILAW 167 (BOM)

Prathik Chandarana v. State of Maharashtra

2010-02-02

S.C.DHARMADHIKARI

body2010
JUDGMENT:- The learned Judge of the Sessions Court having rejected a Revision Application by the impugned order, the Original Accused No.2 has filed this present application seeking this Court's interference under Article 227 r/w. 482 of the Cr.P.C., 2. It is the case of the Applicant that the complaint filed by the Second Respondent before the learned Magistrate alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act being C.C. No.79/SS/2009 alleges that the loan has been advanced to the Applicant as also the co-Accused. In due repayment thereof, the co-accused forwarded the cheque which came to be dishonoured on presentation. There was a legal notice issued and thereafter, the instant complaint has been filed. 3. From a perusal of the complaint, the Complainant's Counsel could not point out to me as to how the present Applicant has been arrayed as an Accused. Beyond inviting my attention to Section 141 of the Negotiable Instruments Act, the Counsel could not point out anything from the complaint which would enable the Court to issue process summoning the Applicant/Co-Accused. 4. In fact, beyond inviting my attention to paragraphs 2 to 4 of the complaint and urging that both Accused have admitted the liability, the Counsel could not point out anything in law which would enable the Court to issue process against the Applicant. Moreso, when the cheque was not signed by him, when it is not stated that the account is joint and that the Accused are carrying on business either as a firm or body of individuals. 5. In such circumstances, the Revisional Court has failed to perform its duty in law to quash the order issuing process against the Applicant. The reasoning of the learned Judge is demonstrative of the fact that he failed to apply his mind to this basic issue. There is nothing except some stray observations in paragraph 8 of the impugned order and which also does not meet the point in issue. Paragraph 8 of the impugned order reads thus:"8. As said hereinbefore that there is no dispute of issue of cheques by Accused No.1. Pleadings in the revision indicate that, Accused Nos.l and 2 stay together and have every idea of their dealings. Notice has been served upon both the accused. Applicant/ Accused has not denied the liability under reply notice. Paragraph 8 of the impugned order reads thus:"8. As said hereinbefore that there is no dispute of issue of cheques by Accused No.1. Pleadings in the revision indicate that, Accused Nos.l and 2 stay together and have every idea of their dealings. Notice has been served upon both the accused. Applicant/ Accused has not denied the liability under reply notice. Needless to say that upon undergoing trial if it is shown to the court that Accused Nos.1 and 2 are separate in their dealings and transaction, appropriate order would be passed, but then proceedings on merit is very much warranted against both the accused. In the circumstances, revision holds no water and needs to be dismissed." 6. The learned Judge ought to have performed his duty in law and corrected the error committed by the learned Magistrate. The Revisional Jurisdiction is intended to correct such errors as would result in serious miscarriage of justice. It was not permissible in law for the Complainant to drag the Applicant into a Criminal Trial. On some sympathetic and spacious grounds, the order of the Magistrate could not have been sustained. In these circumstances, the order under challenge is quashed and set aside. The order issuing process against the Applicant stands quashed. The complaint now to proceed against the Co-Accused Sonal Chandarana. The Application is made absolute in these terms. Application allowed.