Majalgaon Co-Op Sugar Factory Ltd. v. Ganpat Megha Chavan and Anr.

Bombay HC24 Sept 2013WP/614/2011

Case brief

AI extract

What is this about?

High Court held that when summons had been issued and the complaint was dismissed for want of prosecution, the order falls under Section 256 CrPC and is akin to acquittal. The court declined to entertain the writ petition as the remedy of appeal is available, subject to condonation of delay.

What did the court decide?

Writ Petition rejected with liberty to file appeal against the order dated 15.06.2009.

Majalgaon Co-Op Sugar Factory Ltd. Vs Ganpat… — Civil Procedure and Limitation | Bombay HC (2013)

¶1

Cri.W.P. 614.11.odt

¶2

¶3

IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

¶4

CRIMINAL WRIT PETITION NO. 614 OF 2011

¶5

Majalgaon Co-operative Sugar Factory Ltd., Sundarnagar, Post. Talegaon, Tq. Dharur, Dist. Beed Through it’s Chief Agricultural Officer, Shri Sanjay S/o Santaram Kharat, Age : 45 years, Occ : Service, R/o C/o Majalgaon Sahakari Sakhar Karkhana Ltd., Sundar Nagar, Post. Talegaon, Tq. Dharur, Dist. Beed.

¶6

..PETITIONER

¶7

-VERSUS-

¶8

Ganpat S/o Megha Chavan Age : 50 years, Occ : Agri., R/o Mangrul, Post. Mangrul, Tq. Majalgaon, Dist. Beed.

¶9

The State of Maharashtra

¶10

.. RESPONDENTS

¶11

Advocate for Petitioner : Mr. Abhijit Chaudhary h/f Mr. Choudhary D.J. Advocate for Respondent No.1 : Mr. V.S. Undre APP for Respondent No.2 : Mr. G.R. Ingole

¶12

CORAM : ABHAY M. THIPSAY, J. Dated: September 24, 2013

¶13

ORAL ORDER :-

¶14

Heard the learned counsel for the petitioner. Heard the

¶15

Cri.W.P. 614.11.odt

¶16

¶17

learned counsel for the respondent no.1.

¶18

The petitioner society had filed a complaint against the respondent no.1 herein, alleging commission of an offence punishable under Section 138 of the Negotiable Instruments Act. Summons was ordered to be issued against the respondent no.1 requiring him to appear and answer to the charge of the said offence. It, however, appears that the trial did not proceed for a number of reasons including the absence of the parties before the trial Court. Ultimately, by an order passed on 15.06.2009, the learned Magistrate `dismissed the complaint for want of prosecution’.

¶19

Against the said order, the petitioner approached the Court of Sessions by invoking its revisional jurisdiction but, the Sessions Court dismissed the revision holding the order passed by the Magistrate to be proper and legal. The Revisional Court was of the opinion that the order had been passed correctly in view of the provisions of Section 256 and Section 204 (4) of the Code of Criminal Procedure.

¶20

Being aggrieved thereby the petitioner has approached this Court invoking its constitutional jurisdiction.

¶21

The order passed by the Magistrate reads as under :-

¶22

Cri.W.P. 614.11.odt

¶23

¶24

“Perused the record. It appears that this matter is pending for taking steps against the accused since long. On 14.02.2008, the complainant has filed an application for issuing summons against the accused. Summons was issued to the accused but till today no report is received. Thereafter till today no steps taken against the accused to secure the presence of the accused by the complainant. It appears that the complainant does not want to proceed further against the accused. Hence the present complaint stands dismissed for want of prosecution.”

¶25

There were a number of other complaints filed by the present petitioner against the respondent no.1 herein and those complaints were also dismissed by similar orders and in similar circumstances. The petitioner has filed different Writ Petitions challenging the orders passed in the other complaints also. I have taken into consideration this aspect of the matter.

¶26

It appears that the impugned order is not happily worded. Though, it speaks of ‘dismissal of the complaint’, since the case before the Magistrate was a summons case, the impugned order can be justified only by referring to the provisions of Section 256 of the Code. In my opinion, since summons had been issued against the accused, in the circumstances of the case, the order passed by the Magistrate must be treated as an order of acquittal passed under Section 256 of the Code. From such an order, an appeal is provided for.

¶27

4 Cri.W.P. 614.11.odt

¶28

In view of the fact that the impugned order can be traced to the provisions of Section 256 of the Code and must be treated as having passed thereunder, the remedy of filing of appeal against the said order is available to the petitioner. In view of this, I decline to entertain the present Petition.

¶29

The learned counsel for the petitioner submitted that if this view is taken, the petitioner may be put to some hardship as the question of `bar of limitation’, in the event of his filing an appeal, would arise. In this context, it may be observed that the ambiguity in the order passed by the Magistrate reasonably created a doubt in the mind of petitioner as to whether the remedy of appeal was available to him. He had approached the Revisional Court within the time prescribed by law. Thereafter, the present proceedings have remained pending before this Court for about two years. Therefore, the petitioner can highlight these aspects of the matter and seek to have the delay, if any, condoned. Certainly, the Appellate Court shall be taking these aspects of the matter into consideration.

¶30

In the result, the Writ Petition is rejected with the clarification that the petitioner shall be at liberty to file an appeal challenging the order dated 15.06.2009 passed by the Magistrate.

¶31

( ABHAY M. THIPSAY, J. )

¶32

sga/-

¶33

Majalgaon Co-Op Sugar Factory Ltd. v. Ganpat Megha Chavan and Anr.

Case brief

What is this about?

What did the court decide?

Majalgaon Co-Op Sugar Factory Ltd. v. Ganpat Megha Chavan and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Anil Ranchod Chaudhari and Ors. Vs the State of Mah and Ors.

Bhagwanta Bhau Dhamane Vs the State of Maharshtra

Pravin Santosh Patil Vs the State of Maharashtra and Ors.

Kalim Dange S/O Abdul Raheman Dange and Others Vs Uneza Tarannum D/O Babb Patel

Mohd. Abdul Rehman S/O Mohd. Khasim and Others Vs the State of Maharashtra and Another

Sanjay Jagdishprasad Ladda Vs the State of Mah