Agasti Sarv Seva Sangh vs Rohidas Dharma Rathod

A.M. Thipsay, J.—Heard Mr. S.T. Shelke, the learned Counsel for the applicant. Heard Mrs. Sangeet the learned Counsel for the respondent. By consent admitted and taken up for final hearing, forthwith. By consent calling for record and proceedings dispensed with.

The applicant had filed a criminal case against the respondent alleging commission of offences punishable u/s 138 of the Negotiable Instruments Act and section 420 of the Indian Penal Code (IPC). Process was ordered to be issued against the respondent only with respect to the offence punishable u/s 138 of the Negotiable Instruments Act. It appears that the complaint remained pending for a number of years, as the presence of respondent i.e. the accused could not be secured by the applicant inspite of orders passed by the Court to issue summonses or warrants for securing the presence of respondent. On 31.8.2013, the learned Magistrate dismissed the complaint in default by the following order, which was titled by him, as "Special Drive Dated 31.8.2013":

Complainant and Advocate Shri B.R. Arote/Shri B.G. Wakchaure are present. It appears from the record that case is about 5 years old and within 5 years ample opportunity is given to the complainant to serve summons/to execute warrant against accused but complainant failed to secure the presence of the accused within such period.

It further appears that the case is very old. It is pertinent to note that as per the circular No. Stat. 7940 of 2013 dated 20.7.2013 issued by the Hon''ble District Court, Ahmednagar, it is necessary to reduce the pendency of the old cases. Hence, in my considered opinion there is no point in keeping the matter pending as presence of accused is difficult to secure in near future. No effective steps to secure the presence of the accused are taken by the complainant. Therefore, in my considered opinion complaint is liable to be dismissed in default.

Hence, complaint is hereby dismissed in default.

Being aggrieved by the dismissal of the said complaint, the applicant has approached this Court invoking its revisional jurisdiction.

The only reason given by the learned Judge for dismissing the complaint is that the District Court, Ahmednagar had issued a circular on administrative side impressing upon the Judicial Officers the necessity of reducing pendency of old cases. The learned Magistrate observed that, therefore, in his considered opinion, there was no point in keeping the matter pending, as presence of accused is difficult to secure in near future.

The impugned order is patently illegal. There is no provision in the Code of Criminal Procedure, which would permit the Magistrate to dismiss a complaint in default despite the presence of the complainant and his Advocate. If at all, the presence of the accused was not being secured, the Magistrate could have kept the case on dormant file.

Moreover, there is substance in the contention of the learned Counsel for the applicant that it was not the fault of the applicant that the warrants issued for securing the presence of the accused person were not being executed.

The impugned order being contrary to law needs to be interfered with, by exercising the revisional powers of this Court. Revision Application is allowed.

The impugned order is set aside.

The complaint is restored to the file of the learned Magistrate, who shall proceed further with the same expeditiously and in accordance with law.