AI Structured Summary
Not yet generated for this judgment
Judgment
A.V. Potdar, J.—Rule. Rule made returnable forthwith. By consent heard finally at the stage of admission.
These petitions are directed against the orders dated 30.03.2011 passed by Additional Sessions Judge, Majalgaon in Criminal Revision Application Nos. 11/2010 and 12/2010 thereby confirming the orders dated 30.03.2010 passed below Exhibit66 in SCC No. 235/2007 and below Exhibit74 in SCC No. 234/2007, by Additional Chief Judicial Magistrate, Majalgaon. The Additional Chief Judicial Magistrate, by the impugned orders, had discharged Respondent No. 2 from the said Summary Criminal Cases.
As common question of law is involved in both these petitions, they are being disposed of by the common judgment.
For better appreciation of the facts which gave rise to file the present petitions, it would be appropriate to advert to the facts of the case in nut shell, which are as follows:
On the request of Respondents No. 2 to 4, who are the controlling authorities of Jai Mahesh Sugar Factory, the Petitioner had advanced loan of Rs. 15 lakh on 10.07.2006. Against the said hand loan of Rs. 15 Lakh, Respondents No. 2 to 4 have issued two cheques of Rs. 10 lakh and Rs. 5 lakh, respectively in favor of the Petitioner and had assured that the loan amount will be repaid within 6 months else the Petitioner is free to deposit the said cheques. It appears that as the loan amount was not repaid as assured, the cheques were deposited by the Petitioner, however the same came to be dishonored for want of sufficient funds. Thereafter, statutory notices were served on the Respondents and they were called upon to repay the amount within 30 days from the receipt of the notices. However, as the Respondents failed to repay the amount, Petitioner has filed complaints before learned Additional Chief Judicial Magistrate, Majalgaon. Thereafter, verification of the Petitioner/complainant was recorded and process were issued against Respondents No. 2 to 4 in both the complaints.
It appears that on 19.12.2009, Respondent No. 2 filed an application in both the complaints seeking discharge. These applications were contested by the Petitioner on the ground that once the process was issued, learned Magistrate is not empowered to discharge the accused from the complaint, which is to be tried as summary case as there is no provision to discharge the applicant in the summary trial. However, it appears that the trial court, vide orders dated 30.03.2010, discharged Respondent No. 2 from both the summary cases. It also appears that, the Petitioner, being aggrieved by the said discharge of Respondent No. 2 filed Criminal Revision application Nos. 11/2010 and 12/2010 before Sessions Court. However, the learned Revisional Court, vide the orders impugned, on 30.03.2011, dismissed both the revisions, which orders are impugned in the present petitions.
Heard Learned Counsel for the parties.
Chapter XX of the Code of Criminal Procedure deals with the procedure in respect of the summary trials to be tried by the Magistrate. Section 251 to 259 of the Code of Criminal Procedure, in the said Chapter, nowhere empowers the Magistrate to discharge the accused once process is issued. Learned Counsel for the Petitioner urged that in both the cases, particulars of the accusation were not explained to Respondent No. 2, as contemplated u/s 251 of the Code of Criminal Procedure. Nor a common parlance plea of the accused is recorded. It is also an admitted position that evidence of the complainant is also not recorded. In such circumstances, the learned Magistrate is not empowered to exercise the revisional powers, which are vested in the higher Court. It appears that this legal position is not at all considered even by the revisional Court.
The impugned orders, passed by both the Courts below, do not reflect the scope of inquiry and the procedure to be followed in the cases to be tried as summary cases by the Magistrate, which resulted in passing the orders beyond jurisdiction. In the premise, the orders impugned in the present petitions, passed by Additional Chief Judicial Magistrate, Majalagoan on 30.03.2010 and the orders passed by Additional Sessions Judge, Majagalon on 30.03.2011 in Criminal Revision Applications No. 11/2010 and 12/2010, are beyond the scope of the jurisdiction vested in both the courts. If the orders are passed without any jurisdiction then in the eye of law the same is nothing but nullity and therefore requires to be quashed and set aside.
Consequently, both the petitions succeed. The orders impugned in both the petitions are hereby quashed and set aside. Rule is made absolute as indicated above. The parties are directed to appear before the trial Court on 11.10.2011. Learned Counsel for the respective parties undertake to communicate this judgment to their respective clients.