1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRI.WRIT PETITION NO.65 OF 2008 (SHRIRAM LAXMANRAO DHOTE & ANR.. ..Vs.. NARAYAN MAROTRAO NAKHATE) _____________________________________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders ______________________________________________________________________________________________ Shri U.A. Gosavi, Advocate for Applicant. CORAM : R.C.CHAVAN, J. DATED : DECEMBER 05, 2008. 1. On 11th March, 2008 when the matter came up before this Court notice was ordered to be issued to the respondent indicating that the matter may be finally disposed of at the stage of admission itself. This notice seems to have been duly served upon the sole respondent / original complainant in Criminal Complaint Case No.815/2002 before the learned Judicial Magistrate First Class, Corporation Court No.1, Nagpur. However, none appeared for the sole respondent, though served. The matter again came up on 21st November, 2008 and since none was present for the respondent, it was adjourned and has come up before the Court today. 2. I have heard learned counsel for the petitioner. 3. The respondent had filed criminal complaint 2 alleging that the offence punishable under Section 138 of the Negotiable Instruments Act read with Section 420 of the Penal Code had been committed by the present petitioner, on account of dishonour of the cheque, which the petitioner had issued in order to repay a sum of Rs.1,10,000/- taken by him on a promise that he would secure a job from complainant's nephew. Since the petitioner did not secure that job, he had issued one cheque for repayment of that amount, which bounced. 4. The learned Magistrate had issued process for the offence punishable under Section 420 of the Penal Code only. Thereafter the learned Magistrate recorded evidence before charge and then came to pass the impugned order. It is not necessary to go through the various observations made by the learned Magistrate. In paragraph 3 of the order the learned Magistrate observed as under : “3. .... Therefore, without aducing the evidence of respective parties, it is very difficult to decide whether the accused persons had committed the offence under section 420 of the Indian Penal Code. In such circumstances, it is necessary to prosecute both the accused persons and decide the contraversy on merit after recording the evidences, in order to achieve the ends of justice. Therefore, charge is to be framed against both the accuseds. Hence, put up the case for framing the charge against accused No.1 and 2 under section 420 R/w 34 of the Indian Penal Code on next date.” 3 5. The learned Magistrate should have seen provisions of Section 245 and 246 of the Code of Criminal Procedure before passing this order. The learned Magistrate should have seen that if the complainant has not made out a case, which if un-rebutted would warrant conviction of the accused, the accused has to be discharged. Section 246, which provides for framing of charge, also prescribes that when the Magistrate is of the opinion that there is ground for presuming that the accused had committed offence the Magistrate proceeds to frame charge. Thus, there has to be a case which, if un- rebutted, would warrant conviction of the accused or there has to be sufficient ground to presume that the accused had committed an offence. 6. The learned Magistrate herself observes that it was very difficult to decide whether the accused persons had committed an offence. She should have seen that when she had any difficulty she was not entitled to push the criminal process further and it had to be halted. Since, she found it very difficult that whether the accused persons had committed the offence. 7. In view of this, the petition is allowed. 4 The impugned order is quashed and set aside. The petitioner is discharged of offence punishable under Section 420 of the Indian Penal Code. JUDGE RR.