The learned counsel representing the respective parties to

the lis in unison submit that the issue stands covered by the

judgment

of

the

co-ordinate

Bench

of

this

Court

in

W.P.No.102611/2016 (GM-RES), disposed off on 17.3.2017,

wherein the co-ordinate Bench of this Court, on an identical

issue, has held as follows:

2.

This petition is filed seeking quashing of the

order and findings of the learned Senior Civil Judge

& JMFC, Mudhol in LAC No. 202/2010 dated

08.03.2016 wherein the learned magistrate has

directed the Administrative Sheristedar of his Court

to lodge a complaint against the petitioner for the

offences punishable u/S 193, 196, 465, 468 and

471 of IPC.

3.

The

learned

counsel

for

the

petitioner

brought to the notice of this Court a judgment of

the Apex Court in the case of Sharad Pawar V.

Jagmohan Dalmiya and Others reported in (2010)

15 SCC 290 wherein the Apex Court dealing u/S

195 and 340 of Cr.P.C. have set some guidelines

referring to Sec. 340 of Cr.P.C. The procedure to

be followed by the Civil Courts while referring the

complaint to the Criminal Courts for the offences

punishable u/S 193, 196, 465, 468 and 471 of IPC.

This Court also taking into consideration the said

judgment of the Apex Court has reiterated the said

principles in W.P. No. 107794/2016, particularly at

4

paragraph No.6, this Court has observed in the

following manner.

“6. The Hon’ble Apex Court in similar

circumstances was pleased to hold that

in the event of the Court coming to the

conclusion

that

a

complaint

under

Section 340 of the Code is liable to be

lodged, it ought to give an opportunity of

hearing to the persons who are sought to

be proceeded against. The Hon’ble Apex

Court has observed as follows:

“6.

By the impugned order,

the learned Single Judge has

directed that an enquiry be

made against Defendants 1 to 6

in the suit. Before passing of

the

impugned

order

in

the

application under Section 340

CrPC, the learned Single Judge

did not conduct a preliminary

enquiry as contemplated under

Section 340 CrPC. The said

order is challenged before us in

these appeals by the defendants

in the suit.

7.

Having heard the learned

Senior Counsel for both sides

and after perusal of the record,

we are of the considered view

that before giving a direction to

file

complaint

against

Defendants 1 to 6, it was

necessary for the learned Single

Judge to conduct a preliminary

enquiry as contemplated under

Section 340 CrPC and also to

afford an opportunity of being

5

heard to the defendants, which

was admittedly not done.

8.

We,

therefore,

in

the

interest of justice, allow these

appeals, set aside the impugned

order of the High Court passed

in

the

application

filed

by

Respondent

1-plaintiff

under

Section 340 CrPC and remit the

matter to the learned Single

Judge to decide the application

under Section 340 CrPC afresh

in accordance with law, and

after

affording

reasonable

opportunity of being heard to

the defendants, against whom

the

learned

Single

Judge

ordered enquiry.”

- - -

4.

Even on careful perusal of Sec. 340 of

Cr.P.C., before referring the complaint in

writing to the jurisdictional Criminal Court,

the Court which found it expediant to refer a

complaint has to conduct preliminary enquiry

and record its findings to that effect that the

offences being committed, after providing an

opportunity to the other side and thereafter

has to pass appropriate orders.

5.

In view of the said provision and as well

as the above said decisions, I am of the

opinion, the order passed by the learned Civil

Judge & JMFC, Mudhol, which is impugned in

this petition is bad in law and the same is

liable to be quashed. Hence, the following

order is passed.

6

ORDER

Petition

is

allowed.

The

order

dated

06.11.2015 passed in LAC No. 202/2010 on the file

of Senior Civil Judge & JMFC, Mudhol, is hereby

quashed. The matter stands remitted to the Senior

Civil Judge & JMFC, Mudhol, to pass appropriate

orders after providing opportunity to the petitioner

herein and after following due