IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1939 OF 2006 Mr. Subir Roy & Anr. ... Petitioners. Vs. M/s Pinnacle Marketing Pvt.Ltd & Anr.. Respondents. --- Mr. Niranjan Mundargi i/b Anamika Malhotra, for the Applicants. Mr. M.G. Shukla i/b Mr. Girish Kulkarni, for Respondents Nos.1 & 2 Mr. Y.M. Nakhwa, APP for the State. CORAM: A.S. OKA, J. DATE: 7TH JULY, 2009. P.C.: 1. Heard the learned Counsel for the Petitioner and learned Counsel for the first respondent and learned APP for the State. By this Petition filed under article 227 of the Constitution of India read with Section-482 of Code of Criminal Procedure, 1973 a prayer made for quashing and setting aside the complaint filed by the first respondent alleging commission of offences under Section 420 of Indian Penal Code. By an order dated 5th March, 2002, the learned Magistrate returned the complaint back to the complainant for presentation to the competent court having jurisdiction to deal with the complaint. A revision application was preferred by the first respondent in which learned Session Judge interfered by setting aside the order and restored the complaint. The said order came to be challenged by the Petitioners by filing a writ petition in : 2 : this Court. The writ petition was rejected by this Court. A special leave petition was filed by the petitioners but they could not succeed. 2. The learned Counsel for the petitioners submitted that when on earlier occasion the matter was carried to this Court, the only challenge was to the order in revision by which the Sessions Court had set aside order Section-201 of the Code of Criminal Procedure, 1973 of returning the complaint. He, therefore, submitted that the case made out by the petitioners in this petition is that no offence was committed which will have to be considered on merits. 3. I have considered the submissions. It is true that the revision application preferred by the first respondent before the Session Court was for challenging the order under Section 201 of the Code of Criminal Procedure, 1973. Perusal of the paragraph 4 of the judgment in revision shows that there is some consideration of the merits of complaint. The Petitioner challenged the order of the Sessions Court remanding the complaint to the trial court by filing a writ petition. Paragraphs 10 and 11 of the order dated 21st October, 2004 passed by this Court reads thus: “10. However, now I have heard this matter finally and after considering the above reasoning, I am of the view that the contention, as raised by the learned Advocate appearing for the petitioner are not acceptable. The return of compalint on the ground of jurisdiction itself, amounts to final decision and cannot be said to be interlocutary order. Revision or such other proceeding against such decision is mainttainable. Accordingly, it was entertained and decided also. 11. Even on merit, I see no reason to interfere with the order of restoring the complaint and of remand to consider the same on merit.” : 3 : 4. In view of what has observed by this Court in paragraph 11, it is obvious at that stage that even merits of the case were gone into by this court. Therefore, the contentions raised by the petitioners on merits of the complaint cannot be considered and the prayer for quashing the complaint cannot be considered. 5. Hence, the writ petition is rejected. However, it is made clear that the contentions raised by the petitioners on merits are expressly kept open and it will be open to the petitioner to agitate the said contentions at proper stage. It is obvious that the observations made by this Court in the earlier petition which was decided on 21st October 2004 are prima facie observations. JUDGE acd