7. Mr. Gaonkar, the learned Counsel appearing for the Petitioners, submitted that the impugned order suffered from procedural flaw as the Executive Magistrate failed to abide by the requirements of Section 138 of Cr.P.C. Upon issuing the conditional order and in the face of dispute raised by the Petitioners, the Magistrate under Section 138 of Cr.P.C., ought to have taken evidence in the matter as in a summons case and upon being satisfied that the original conditional order itself is reasonable or subject to such modification as would be necessary, make the conditional order absolute. The learned Counsel also placed emphasis on the fact that if the Magistrate was not satisfied about making the order absolute in its original form or upon modification, no further proceedings could be undertaken. It was submitted that despite the detailed reply filed on behalf of the Petitioners denying the claims of the Respondent no. 3, the Executive Magistrate proceeded to pass the impugned order under Section 133 of Cr.P.C., making the conditional order absolute in the absence of compliance with the procedure under Section 138 of Cr.P.C. On this basis, it was submitted that the order was rendered without jurisdiction and, therefore, the present Petition was maintainable before this Court.
