Dismissed

Aarti Company Registered Partnership Firm, Partner Shrivallabh Radhkisan Karwa v. Ismail Husen Shaikh and Anr.

Bombay HC14 Nov 2014APL/634/2014

Case brief

AI extract

What is this about?

This Criminal Application challenged the dismissal of a section 138 complaint on the ground of no steps. The Court held that such dismissal after summons amounted to an acquittal, rejecting the revision petition and instructing the applicant to approach the court by way of appeal.

What did the court decide?

The Criminal Application invoking inherent powers is rejected as the applicant is entitled to file an appeal under section 378 of the Code of Criminal Procedure.

Aarti Company Registered Partnership Firm, Partner… — Cheque Dishonour | Bombay HC (2014)

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Tilak 1/3 (10)APL-634-14

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPLICATION NO.634 OF 2014

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M/s.Aarti Company .. Applicant Versus Ismail Husen Shaikh and Anr .. Respondents

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Ms.Rajlaxmi Punjabi i/b Ms.Kshitija Sarangi, Advocate for the applicant.

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Mrs.S.V.Gajare, APP for the Respondent State.

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CORAM : ABHAY M. THIPSAY, J. DATED : 14^th NOVEMBER 2014. 

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P.C. :

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1 Heard Ms.Rajlaxmi Punjabi learned counsel for the applicant.

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2 The applicant – a firm – is the original complainant. It had filed a complaint in respect of an offence punishable under section 138 of the Negotiable Instruments Act against the respondent no.1 herein. Process had been issued by the learned Magistrate on the complaint, but the complaint later came to be dismissed by an order dated 6^th March 2007. The said order reads as under :

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“Complainant remain absent. No steps

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taken since long. Hence complainant stands dismissed for want of steps”.

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Tilak 2/3 (10)APL-634-14

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3 Against this order, the applicant approached the Court of Sessions by filing an application for revision. It was contended before the Revisional Court that proper procedure as contemplated under section 256 of the Code of Criminal Procedure (for short 'the Code'), was not followed by the Magistrate, but the Revisional Court held that the complaint had been dismissed 'for not taking steps'. Holding that the Magistrate had committed no error in dismissing the complaint (wrongly mentioned as 'Revision Petition' in the order passed by the Sessions Court), the learned Addl. Sessions Judge dismissed the revision. Being aggrieved thereby, the applicant has approached this Court, invoking its inherent powers, and praying that the order of dismissal of the complaint, be set aside.

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4 It is clear that the order dated 6^th March 2007 passed by the Magistrate can only be termed as an order of acquittal under section 256 of the Code. There is no other provision in the Code of Criminal Procedure which would permit the Magistrate to terminate the complaint proceedings at that stage. The observations 'no steps taken since long. Hence, complaint stands dismissed for want of steps' would not change or alter the nature and character of the order, and it has to be termed and treated as an order of acquittal passed under section 256 of the Code. The learned Addl. Sessions Judge was also wrong in not grasping this aspect of the matter. In fact, there would be no question of 'dismissing the complaint' as such, once an accused is summoned to face the prosecution. There is no provision in the Code permitting such a course. The termination of proceedings of a summons case after the accused has been summoned can only be

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Tilak 3/3 (10)APL-634-14

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by way of an acquittal (except in cases where the termination is on account of a legal defect, such as want of sanction, bar of limitation etc), and irrespective of the terminology used, such termination of proceedings would amount to an acquittal of the accused.

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5 Thus, though there is some error in the order passed by the Revisional Court, there is no case for interfering in the matter, since it is evident that the impugned order passed by the Magistrate is an order of acquittal under section 256 of the Code. Against an order of acquittal, Appeal lies. Therefore, the proceedings filed by the applicant before the Court of Sessions by way of Revision and the dismissal of the revision proceedings, are to be treated as nonest. It would be therefore, open for the applicant to file an appeal in accordance with the provisions of section 378 of the Code. Certainly, the issue of the limitation would arise and it would be for the applicant to make out a case for condonation of delay.

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6 Since the remedy of filing an Appeal against the impugned order is available to the applicant, the Application is rejected.

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(ABHAY M.THIPSAY, J)

Aarti Company Registered Partnership Firm, Partner Shrivallabh Radhkisan Karwa v. Ismail Husen Shaikh and Anr.

Case brief

What is this about?

What did the court decide?

Aarti Company Registered Partnership Firm, Partner Shrivallabh Radhkisan Karwa v. Ismail Husen Shaikh 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

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