The limited question is, whether
opportunity should have been given to the complainant to record
his verification. The question of issue of process is to be
considered under Chapter XV of the Code of Criminal Procedure.
The stage of Section 256 of the Code of Criminal Procedure was
not yet reached because Section 256 provides that, if summons
has been issued on complaint and thereafter complainant
remains absent, the Magistrate would have discretion to acquit
the accused.
2. The learned counsel for the applicant - complainant
has tendered across the bar certified copy of application which
was filed on 15.4.2015 for adjournment as the complainant had
some difficulty. It was a fresh matter dated 3.3.2015, which had
been registered by the Court of Judicial Magistrate, First Class on
9.3.2015. It is not clear how the Magistrate observed that the
complaint had been filed on 5.2.2015 and proceeded to reject the
application and dismiss the complaint. It was unreasonable on
the part of the trial Court not to give some breathing time to the
complainant especially when the complainant had filed an
application.
The trial Court, without recording
verification, passed orders stating that the complaint was being
dismissed for want of verification under section 203 of the Code
of Criminal Procedure. Section 203 of the Code of Criminal
Procedure can be invoked only after considering the statement
on oath, if any, of the complainant and of the witnesses, and the
result of the enquiry or investigation, if any, under section 202.
The said stage was yet not reached. Thus, the impugned order
cannot be maintained.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.3714 OF 2015
M/s Umedmal Bhikulal,
V
Saibaba Trading Company,
CORAM: A.I.S. CHEEMA, J.
DATED: 5th May, 2016.
Citation: 2017 ALLMR(CRI) 1077
1. Heard counsel for the applicant - original complainant
and learned A.P.P. for respondent No.2/ State. In this matter,
this Court earlier issued notice to the respondent No.1 - original
accused. However, now it is noticed that, in the trial Court, the
complaint came to be dismissed even before the process was
issued. At the stage of issue of process, the procedure does not
contemplate hearing the accused. As such, it is not necessary to
further pursue this matter for service of notice on the respondent
No.1 - original accused. The limited question is, whether
opportunity should have been given to the complainant to record
his verification. The question of issue of process is to be
considered under Chapter XV of the Code of Criminal Procedure.
The stage of Section 256 of the Code of Criminal Procedure was
not yet reached because Section 256 provides that, if summons
has been issued on complaint and thereafter complainant
remains absent, the Magistrate would have discretion to acquit
the accused.
2. The learned counsel for the applicant - complainant
has tendered across the bar certified copy of application which
was filed on 15.4.2015 for adjournment as the complainant had
some difficulty. It was a fresh matter dated 3.3.2015, which had
been registered by the Court of Judicial Magistrate, First Class on
9.3.2015. It is not clear how the Magistrate observed that the
complaint had been filed on 5.2.2015 and proceeded to reject the
application and dismiss the complaint. It was unreasonable on
the part of the trial Court not to give some breathing time to the
complainant especially when the complainant had filed an
application.
3. The effect of the order passed by the trial Court is
that of "discharge" where fresh complaint would not be barred.
However, looking to the fact that the present complaint arises
out of Section 138 of the Negotiable Instruments Act, which
requires filing of a complaint in a particular time after notice has
been issued, it would be appropriate to invoke revisional
jurisdiction by this Court and correct the orders which have been
passed by the trial Court. The trial Court, without recording
verification, passed orders stating that the complaint was being
dismissed for want of verification under section 203 of the Code
of Criminal Procedure. Section 203 of the Code of Criminal
Procedure can be invoked only after considering the statement
on oath, if any, of the complainant and of the witnesses, and the
result of the enquiry or investigation, if any, under section 202.
The said stage was yet not reached. Thus, the impugned order
cannot be maintained.
4. The earlier order issuing notice to respondent No.1 -
original accused, are recalled, and invoking revisional jurisdiction,
the impugned order dated 15.4.2015 passed by the Judicial
Magistrate, First Class, Kalamnuri are quashed and set aside.
The complaint is restored. The trial Court shall give opportunity
to the complainant and record verification as contemplated in
Chapter XV of the Code of Criminal Procedure. The complainant
shall appear before the trial Court for verification on 23rd May
2016. This application is accordingly finally disposed of.
(A.I.S. CHEEMA, J.)
opportunity should have been given to the complainant to record
his verification. The question of issue of process is to be
considered under Chapter XV of the Code of Criminal Procedure.
The stage of Section 256 of the Code of Criminal Procedure was
not yet reached because Section 256 provides that, if summons
has been issued on complaint and thereafter complainant
remains absent, the Magistrate would have discretion to acquit
the accused.
2. The learned counsel for the applicant - complainant
has tendered across the bar certified copy of application which
was filed on 15.4.2015 for adjournment as the complainant had
some difficulty. It was a fresh matter dated 3.3.2015, which had
been registered by the Court of Judicial Magistrate, First Class on
9.3.2015. It is not clear how the Magistrate observed that the
complaint had been filed on 5.2.2015 and proceeded to reject the
application and dismiss the complaint. It was unreasonable on
the part of the trial Court not to give some breathing time to the
complainant especially when the complainant had filed an
application.
The trial Court, without recording
verification, passed orders stating that the complaint was being
dismissed for want of verification under section 203 of the Code
of Criminal Procedure. Section 203 of the Code of Criminal
Procedure can be invoked only after considering the statement
on oath, if any, of the complainant and of the witnesses, and the
result of the enquiry or investigation, if any, under section 202.
The said stage was yet not reached. Thus, the impugned order
cannot be maintained.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.3714 OF 2015
M/s Umedmal Bhikulal,
V
Saibaba Trading Company,
CORAM: A.I.S. CHEEMA, J.
DATED: 5th May, 2016.
Citation: 2017 ALLMR(CRI) 1077
1. Heard counsel for the applicant - original complainant
and learned A.P.P. for respondent No.2/ State. In this matter,
this Court earlier issued notice to the respondent No.1 - original
accused. However, now it is noticed that, in the trial Court, the
complaint came to be dismissed even before the process was
issued. At the stage of issue of process, the procedure does not
contemplate hearing the accused. As such, it is not necessary to
further pursue this matter for service of notice on the respondent
No.1 - original accused. The limited question is, whether
opportunity should have been given to the complainant to record
his verification. The question of issue of process is to be
considered under Chapter XV of the Code of Criminal Procedure.
The stage of Section 256 of the Code of Criminal Procedure was
not yet reached because Section 256 provides that, if summons
has been issued on complaint and thereafter complainant
remains absent, the Magistrate would have discretion to acquit
the accused.
2. The learned counsel for the applicant - complainant
has tendered across the bar certified copy of application which
was filed on 15.4.2015 for adjournment as the complainant had
some difficulty. It was a fresh matter dated 3.3.2015, which had
been registered by the Court of Judicial Magistrate, First Class on
9.3.2015. It is not clear how the Magistrate observed that the
complaint had been filed on 5.2.2015 and proceeded to reject the
application and dismiss the complaint. It was unreasonable on
the part of the trial Court not to give some breathing time to the
complainant especially when the complainant had filed an
application.
3. The effect of the order passed by the trial Court is
that of "discharge" where fresh complaint would not be barred.
However, looking to the fact that the present complaint arises
out of Section 138 of the Negotiable Instruments Act, which
requires filing of a complaint in a particular time after notice has
been issued, it would be appropriate to invoke revisional
jurisdiction by this Court and correct the orders which have been
passed by the trial Court. The trial Court, without recording
verification, passed orders stating that the complaint was being
dismissed for want of verification under section 203 of the Code
of Criminal Procedure. Section 203 of the Code of Criminal
Procedure can be invoked only after considering the statement
on oath, if any, of the complainant and of the witnesses, and the
result of the enquiry or investigation, if any, under section 202.
The said stage was yet not reached. Thus, the impugned order
cannot be maintained.
4. The earlier order issuing notice to respondent No.1 -
original accused, are recalled, and invoking revisional jurisdiction,
the impugned order dated 15.4.2015 passed by the Judicial
Magistrate, First Class, Kalamnuri are quashed and set aside.
The complaint is restored. The trial Court shall give opportunity
to the complainant and record verification as contemplated in
Chapter XV of the Code of Criminal Procedure. The complainant
shall appear before the trial Court for verification on 23rd May
2016. This application is accordingly finally disposed of.
(A.I.S. CHEEMA, J.)
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