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2014 DIGILAW 1528 (BOM)

Mohammed Ashfaque v. Ramrao

2014-07-14

V.M.DESHPANDE

body2014
JUDGMENT : V.M. Deshpande, J. 1. By the present Criminal Application filed U/s. 482 of the Code of Criminal Procedure, the present applicant is questioning the correctness of the Order passed by the learned Judicial Magistrate (First Class), Aurangabad dated 17/06/2013 below Exh. 60 in S.C.C. No. 8834 of 2006, whereby the learned Magistrate was pleased to reject the application (Exh. 60) filed on behalf of the present applicant. A Complaint U/s. 138 of the Negotiable Instruments Act was filed by the respondent No. 1 against the present applicant. The said Complaint was registered as S.C.C. No. 8834 of 2006. During the pendency of the Complaint, a pursis (Exh. 42) was filed before the learned Magistrate for withdrawal of the Complaint. The learned Magistrate, in view of the pursis, discharged the present applicant vide Order dated 31/08/2009. 2. A Revision was filed before the Sessions Court by the non applicant No. 1/Complainant that the present applicant failed and neglected to make the payment as promised and, therefore, challenged the order of the withdrawal of the Complaint dated 31/08/2009. Ultimately, the matter reached to this Court in the nature of Criminal Application No. 3160 of 2010 filed by the present non applicant No. 1/Complainant. This Court on 26/09/2011, after hearing the parties, was pleased to set aside the Order dated 31/08/2009 and the matter was remanded back to the Court of the Judicial Magistrate (First Class) - 7, Aurangabad for its disposal in accordance with law. 3. After remand, non applicant/Complainant filed a pursis before the Magistrate (Exh. 57) intimating the Court that the Complainant does not wish to examine any witness. After the said pursis was filed, learned Magistrate fixed the matter for statement of the accused U/s.313 of the Code of Criminal Procedure. At that stage, an application was filed by the present applicant/accused on 25/03/2013. The said application is at Exh. 60. By the said application, the applicant/accused prayed that the order of recording statement be revoked and the matter be fixed for hearing of accused only. The said application was rejected by the learned Magistrate on 17/06/2013. Against the said Order, the present Criminal Application U/s. 482 of the Code of Criminal Procedure is filed. 4. Heard Mr. D.S. Bharuka, learned counsel for the applicant and Mr. N.T. Tribhuwan, learned counsel for the non applicant No. 1. 5. The said application was rejected by the learned Magistrate on 17/06/2013. Against the said Order, the present Criminal Application U/s. 482 of the Code of Criminal Procedure is filed. 4. Heard Mr. D.S. Bharuka, learned counsel for the applicant and Mr. N.T. Tribhuwan, learned counsel for the non applicant No. 1. 5. According to the learned counsel for the applicant, the Court below has committed an error in rejecting the application (Exh. 60). According to the learned counsel, learned Magistrate has committed an error in fixing the proceedings pending before it for recording of the statement of the applicant/accused U/s. 313 of the Code of Criminal Procedure. Learned counsel for the applicant submits that after the remand from this Court, the Magistrate was obliged only to record the reasons for accepting the compromise as stated by the Complainant himself in pursis (Exh. 42). Therefore, learned counsel submitted that the Order passed by the learned Magistrate be set aside. 6. Paragraph No. 17 of the Judgment of this Court in Criminal Application No. 3160 of 2010 is reproduced hereunder: "The impugned order, therefore, requires to be set aside. It shall, however, be open for the respondent- accused to take defence of satisfaction of the liability flowing from the cheque in question in the said complaint as a result of settlement outside the Court. The order dismissing the complaint passed below Complainant Exhibit 1 in SCC No. 8834 of 2006 is set aside and the case is remanded back to the Court of Judicial Magistrate First Class-7, Aurangabad for its disposal in accordance with law. The parties shall appear before the trial Court on 21/10/2011. Record and proceedings be sent back to the trial Court forthwith." 7. Perusal of the observations made in paragraph No. 17 while remanding back the matter reveals that this Court has specifically expressed that it is open for the applicant/accused to take defence of satisfaction of the liability flowing from the cheque in question in the said complaint as a result of settlement outside the Court. Further, this Court has remanded the matter for disposal in accordance with law. It is pertinent to note that this Order has attained its finality. 8. The question of defence of the applicant would arise only after the applicant/accused enters in the witness box in reply to the questions put to him U/s. 313 of the Code of Criminal Procedure. Further, this Court has remanded the matter for disposal in accordance with law. It is pertinent to note that this Order has attained its finality. 8. The question of defence of the applicant would arise only after the applicant/accused enters in the witness box in reply to the questions put to him U/s. 313 of the Code of Criminal Procedure. In the criminal matter that is only stage wherein the accused can specifically disclose his defence. Once this Court expressed that it is open for the applicant/accused to take the defence as enumerated in paragraph No. 17 of the earlier Judgment, learned Magistrate was absolutely right in fixing the matter for recording the statement of the applicant/accused U/s. 313 of the Code of Criminal Procedure. Learned Magistrate has, therefore, correctly rejected the application (Exh. 60). No interference is called for and hence the present Criminal Application is dismissed.