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IN THE HIGH COURT OF BOMBAY AT AURANGABAD BENCH
T.V. Nalawade, J.
Hariram Vensimal Bharwani – Appellant
Vs.
State of Maharashtra – Respondent
Criminal Writ Petition Nos. 941, 943, 944, 945 and 947 of 2012
Decided On: 08.12.2014
Negotiable Instruments Act - Criminal Procedure Code - Section 138 of the Negotiable Instruments Act, Section 420 of the Indian Penal Code - Section 256 of the Code of Criminal Procedure, 1973 - Section 397 and 401 of the Code - Section 378(4) of the Code - Section 259 of the Code - Section 249 of the Code - Section 300 of the Code
Fact of the Case:
The respondent filed private complaints for offences under section 138 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code. The complaints were dismissed by the Judicial Magistrate under section 256 of the Code of Criminal Procedure, 1973. The orders of dismissal were challenged in the Sessions Court through criminal revision applications.
Finding of the Court:
The court held that the Judicial Magistrate had no jurisdiction to acquit the accused by dismissing the complaints under section 256 of the Code. It was determined that the dismissal amounted to discharge and not acquittal, making the orders revisable. The petitions were dismissed, and interim relief was vacated.
Issues: The main issue was whether the orders of dismissal under section 256 of the Code amounted to acquittal or discharge, and whether they were revisable.
Ratio Decidendi: The court analyzed the provisions of Sections 397, 401, and 378(4) of the Code, as well as Sections 259 and 249, and Section 300. It concluded that the dismissal under section 256 of the Code amounted to discharge and not acquittal, making the orders revisable.
Final Decision: All the petitions were dismissed, and interim relief was vacated. The prayer for continuation of the interim relief was rejected.
T.V. Nalawade, J.
1. The first proceeding is filed against the judgment and order of Criminal Revision Application No. 108/2003 and this revision was filed by the present respondent No. 2 against the order made by the learned Judicial Magistrate, First Class, Jalgaon in S.C.C. No. 207/1997. The second proceeding is filed against the judgment and order of Criminal Revision Application No. 111/2003 and this revision was filed by the present respondent No. 2 against the order made by the learned Judicial Magistrate, First Class, Jalgaon in S.C.C. No. 211/1997. The third proceeding is filed against the judgment and order of Criminal Revision Application No. 110/2003 and this revision was filed by the present respondent No. 2 against the order made by the learned Judicial Magistrate, First Class, Jalgaon in S.C.C. No. 210/1997. The fourth proceeding is filed against the judgment and order of Criminal Revision Application No. 113/2003 and this revision was filed by the present respondent No. 2 against the order made by the learned Judicial Magistrate, First Class, Jalgaon in S.C.C. No. 213/ 1997 and the last proceeding against the judgment and order of Criminal Revision Application No. 112/2003 and this revision was filed by the present respondent No. 2 against the order made by the learned Judicial Magistrate, First Class, Jalgaon in S.C.C. No. 212/ 1997. All the cases were filed by respondent No. 2 for offences punishable under section 138 of the Negotiable Instruments Act and Section 420of Indian Penal Code. These private complaints were dismissed by the learned Judicial Magistrate, First Class, under section 256 of the Code of Criminal Procedure, 1973 and the order of dismissal was challenged in the Sessions Court by filing aforesaid criminal revision applications. Learned Additional Sessions Judge has set aside the orders of dismissal and has restored the matters. Heard learned counsel for the petitioner. Learned Additional Public Prosecutor is also heard. Though respondent No. 2, original complainant, was served she did not appear.
2. The orders made, copy of which is on the record, shows that initially process was issued in private complaint for offence punishable under section 138 of the Negotiable Instruments Act. As there was no process issued for offence under section 420 of the Indian Penal Code, revision petitions were filed by the original complainant and those revision applications were allowed. Then in the year 1998 the process was issued for offence punishable under section 420, IPC also in all the private complaints. Though the matters were still described as summons cases, the cases were actually warrant cases. These complaints came to be dismissed due to absence of complainant on 19-12-2002 under section 256 of the Code of Criminal Procedure, 1973 (for short, "the Code").
3. The stage of the matter was evidence before charge. Learned counsel for the petitioner submitted that such order is possible in law and there is nothing wrong in the order of acquittal made by the learned Judicial Magistrate. It is surprising that all the criminal revision applications were decided on 17-12-2003, the matters were restored accordingly but the present proceedings came to be filed on 10-10-2012. This Court (presided over by other Hon'ble Judge) gave interim relief and stay was given to the decision of the Sessions Court by order dated 16-10-2012. It appears that there is service of notice of the proceeding on respondent No. 2, original complainant but after 19-12-2012 nobody got circulation in the matters and the proceedings were lying in the Department. Only due to specific order given by this Court the matters were listed for admission purpose and they were heard.
4. The main contention of the learned counsel for the petitioner is that due to order of the Judicial Magistrate made under section 256 of the Code it needs to be presumed that the accused is acquitted and so the revision was not tenable in Sessions Court. The learn
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