APEAL.403-08 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 403 OF 2008 Powai Cosmopolitan Cooperative Housing Society, Ltd. ...Appellant Vs. State of Maharashtra & ors. ...Respondents *** Mrs. Naina Desai i/b Nimish Desai, for the Appellant. Mrs. M. R. Tidake, APP for the Respondent-State. Mr. Amarjit Ranu, Respondent No.2 in person. *** CORAM: V. M. KANADE J. DATE : SEPTEMBER 8, 2010 P.C. 1. Heard the learned counsel for the appellant, learned APP for the State, and respondent No.2 in person. This is an appeal against the acquittal of respondent No.2/accused. The original complainant is aggrieved by the judgment and order dated 23rd November, 2007 passed by the learned Railway Metropolitan Magistrate, presiding in Mobile Court at Andheri, acquitting the respondent No.2/accused, and has preferred this appeal against the said order. 2. The complaint was filed by the Powai Cosmopolitan APEAL.403-08 - 2 - Cooperative Housing Society Ltd, through its Chairman Suresh Medhekar. The process was issued on the said complaint, for the offence punishable under S. 406 of I. P. Code. An application was made in the said complaint on behalf of one Mr. S. M. Shenoy, claiming to be the Honorary Secretary of the Powai Cosmopolitan Cooperative Housing Society Ltd., appearing in person, seeking withdrawal of the said complaint, in view of the observations made by the Sessions Court, Greater Bombay that Suresh Medhekar was not the Chairman of the Society. In the said application, it was stated that services of the advocate have been terminated. The permission was sought to withdraw the complaint. The learned Magistrate on this application, without verifying the particulars or the correctness of the position, had passed the following the order dated 23rd November, 2007 - “In view of Exh.2, complainant did not adduce the evidence before charge. Hence, the complaint is disposed of, accused is acquitted.” 3. In my view, the said order discloses non application of mind. The learned Magistrate ought to have ascertained whether the so called Honorary Secretary who had filed that application had the necessary authority to withdraw the complaint. Secondly, the learned APEAL.403-08 - 3 - Magistrate should have given intimation to Suresh Medhekar who had filed the complaint as Chairman of the Housing Society. Thirdly, the learned Magistrate also ought to have verified the fact, as alleged by the Honorary Secretary in the said complaint, upon which such a finding given by the Sessions Court. No reasons have been recorded by the learned Magistrate while passing the said order and lastly, application filed by the so called Honorary Secretary was for withdrawal and the learned Magistrate, however, on the said application acquitted the accused. In my view, the learned Magistrate has committed an error of law which is apparent on the face of record and also committed material illegality in passing the order of acquittal. Hence, the impugned order dated 23rd November, 2007 is set aside, the Criminal Complaint No. 37/SW of 2006 is restored to the file. The trial of the said criminal complaint is expedited. Both parties shall appear before the learned Magistrate on 27th September, 2010. The learned Magistrate shall thereafter decide the said criminal complaint on its own merits and in accordance with law. The criminal appeal is therefore, disposed of in above terms. The record and proceedings be sent to the learned Magistrate. [ V. M. KANADE J.]