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2019 DIGILAW 727 (BOM)

Salimbhai v. Amiruddin Hasan Nurani Malak

2019-03-13

M.G.GIRATKAR

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JUDGMENT : M.G. Giratkar, J. Complainant Salimbhai filed a complaint before learned Judicial Magistrate First Class, Nagpur alleging offence under Section 406 of the Indian Penal Code. On 1.7.2003, learned Judicial Magistrate First Class, passed an order after hearing the complainant and recording verification and issuing process against the accused for offence under Section 406 of the Indian Penal Code. The said order was challenged before learned Sessions Judge, Nagpur in Criminal Revision Application No.1063/2005. On 18.11.2005, learned Sessions Judge decided the said revision. While deciding the revision, learned Sessions Judge recorded some findings. The Sessions Judge came to conclusion that the complainant has not prima facie established his contention in respect of amount of misappropriation of property and, therefore, order passed by learned Judicial Magistrate First Class was quashed and set aside and directed learned Judicial Magistrate First Class to proceed afresh in accordance with law. Learned Sessions Judge also directed that learned Judicial Magistrate First Class shall direct the complainant to adduce evidence and, thereafter, proceed with the matter in accordance with law. Applicant/accused in Criminal Application No.785/2006 challenged clause No.3 of the operative part of the same judgment and order in Criminal Revision Application No.1063/2005. The said clause No.3 of the operative part of the judgment and order passed by learned Sessions Judge is reproduced herein below: "(3) Court shall direct the complainant to adduce evidence and thereafter proceed in the matter in accordance with law." 2. Heard learned counsel Shri A.A. Naik for the applicants in Criminal Revision No.288/2005. He submitted that learned Sessions Judge ought not to have recorded findings in respect of property of misappropriation. Learned Sessions Judge only should have taken a decision as to whether the order passed by learned Judicial Magistrate First Class is legal or not. He submitted that learned Judicial Magistrate First Class came to conclusion that there is prima facie case to issue process for the offence under Section 406 of the Indian Penal Code and, therefore, process was issued. He submitted that the order passed by learned Judicial Magistrate First Class is wrongly quashed and set aside by learned Sessions Judge and, therefore, he prayed to allow the revision. 3. Learned senior counsel Shri Anil S. Mardikar for applicant in Criminal Application No.785/2006 pointed out that once stage of issuing process has gone, then the Court cannot revert back for recording of evidence and accepting documents. 3. Learned senior counsel Shri Anil S. Mardikar for applicant in Criminal Application No.785/2006 pointed out that once stage of issuing process has gone, then the Court cannot revert back for recording of evidence and accepting documents. In support of his submission, learned senior counsel pointed out a decision of this Court in the case of Jayant s/o Vishwanath Uttarwar vs. Shree Sai Baba Sewa Mandal and anr decided on 7.4.1982. Learned senior counsel pointed out deed of relinquishment and submitted that the accused has not committed any misappropriation. He supported the findings given by learned Sessions Judge except clause No.3 of the operative order. It is submitted by learned senior counsel that learned Sessions Judge should not have directed the Court below to direct the complainant to adduce evidence. He submitted that there is no prima facie case against the accused to issue process for offence under Section 406 of the Indian Penal Code. Therefore, learned senior counsel prayed to quash and set aside clause No.3 of the operative part of the judgment and order in Criminal Revision Application No.1063/2005. 4. Procedure in respect of private complaint is given in Chapter XV of the Code of Criminal Procedure. It is discretion of learned Magistrate to call police report or to get additional evidence in addition to evidence of complainant etc.. It is for learned Magistrate to satisfy himself before issuing process against the accused. Before issuing process, there is no role of accused. Therefore, precaution is to be taken by learned Magistrate before issuing process to satisfy himself as to whether there is prima facie case in respect of alleged offence. Learned Sessions Judge in the impugned judgment and order observed that specific amount is not mentioned by the complainant and, therefore, it is hard to come to conclusion about misappropriation of specific amount of property of the Trust. 5. There is no dispute that there is a trust property. As per the complainant, the accused is in possession of the trust property and is misappropriating income of the said property. Learned Sessions Judge came to conclusion that specific amount is not mentioned and, therefore, order passed by learned Magistrate is set aside. The operative order of learned Sessions Judge is reproduced herein below: ORDER 1. The revision petition is partly allowed and the impugned order dated 1.7.2003 is hereby quashed and set aside. 2. Learned Sessions Judge came to conclusion that specific amount is not mentioned and, therefore, order passed by learned Magistrate is set aside. The operative order of learned Sessions Judge is reproduced herein below: ORDER 1. The revision petition is partly allowed and the impugned order dated 1.7.2003 is hereby quashed and set aside. 2. Case is, however, remanded to Lower Court for proceeding afresh in the matter, in accordance with law. 3. Court shall direct the complainant to adduce evidence and thereafter proceed in the matter in accordance with law. 4. Complainant is directed to appear before the Lower Court on 5.12.2005. 6. At this stage, as per judgment and order passed by learned Sessions Judge, Nagpur in Criminal Revision Application No.1063/2005, there is no process against the accused. As per the said judgment, learned Sessions Judge directed learned Magistrate to record further evidence and come to conclusion in respect of issuing process. Therefore, role of the accused at this stage is nowhere. 7. Before issuing process, accused cannot take part in the proceeding. Therefore, the decision in the case of Jayant s/o Vishwanath Uttarwar vs. Shree Sai Baba Sewa Mandal and anr cited supra is not applicable. In that judgment it is observed that once process is issued, then the Court issuing process cannot accept further evidence/documents. As per order of Sessions Court, learned Judicial Magistrate First Class is directed to direct the complainant to lead evidence/documents. Learned Magistrate has to make exercise by examining the complainant, witnesses, and documents etc. and, thereafter, he has to come to the conclusion as to whether process is to be issued or not. 8. Opportunity is given to the complainant by the impugned judgment. Learned Magistrate has to record its finding as to whether income of the trust property is misappropriated or not. Hence, there is no perversity or illegality in the judgment and order impugned in the present revision. 9. In view of the above, Criminal Revision Application No.288/2005 and Criminal Application No.785/2006 are hereby dismissed. 10. Opportunity is given by the Court to the complainant to adduce evidence. After issuing process, the accused is at liberty to file an application for discharge etc.. 11. Learned Magistrate dealing the present matters shall follow procedure contained in Chapter XV of the Code of Criminal Procedure. 12. 10. Opportunity is given by the Court to the complainant to adduce evidence. After issuing process, the accused is at liberty to file an application for discharge etc.. 11. Learned Magistrate dealing the present matters shall follow procedure contained in Chapter XV of the Code of Criminal Procedure. 12. At this stage, learned senior counsel submitted that once matter is remitted back to learned Magistrate, then opportunity needs to be given to the accused. The procedure is given in Chapter XV of the Code of Criminal Procedure. Learned Magistrate is at liberty to decide further course of action as per the provisions of the Code of Criminal Procedure.