1 HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR . CRIMINAL APPEAL NO.146 OF 2010. SUDHAKAR @ DEVIDAS KRISHNARAO DESHPANDE VS VASANTA GANPAT DHOLE AND ANOTHER. ______________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Shri R. D. Najbile, Advocate for the applicant. Coram : A.H. JOSHI, J. Date : 16th April, 2010. 1. Appellant was respondent in Regular Civil Appeal No.4 of 2008 before the District Judge-I at Darwha. He had filed application Exh.14 for taking action against appellant therein under Section 340 of Criminal Procedure Code. 2. According to the appellant, the application for condonation of delay was filed by appellant in Regular Civil Appeal No.4 of 2008. The reason assigned for explaining delay is sickness and immobility. 3. In the background of medical certificate 2 and affidavit, it was alleged that the said appellant was present in the Court in execution petition no.10 of 2002 and this fact of attendance falsifies his plea of sickness and mobility. 4. Learned District Judge has rejected said Exh.14 without enquiry and without registering it as a separate Misc. Judicial Case. 5. This appeal is preferred by present appellant challenging said rejection. 6. According to the learned Advocate Mr. Najbile, it is imperative on the part of the Court to register the application for enquiry under Section 340, hold an enquiry and then direct appropriate action. 7. According to the learned Advocate for the appellant, this procedure is not followed and therefore, the impugned order is liable to be quashed and set aside. 8. Learned Advocate Mr. Najbile has placed reliance on the judgment of this Court reported in 2007 ALL MR (Cri.) 2281, Kenneth Desa S/o Late John 3 Desa & Anr. Vs. Gopal S/o Leeladhar Narang, in support of his submissions. 9. Perused the impugned order and reported Judgment cited by learned Advocate Mr. Najbile. 10. Perusal of judgment reveals the observation in paragraph no.9 which reads as follows: “9. The perusal of the Roznamas of Execution Petition No.10 of 2002, it shows that the specific presence of the appellant is not quoted......” [Page 12 of Crim. Appeal paper book] 11. The judgment relied upon by the learned Advocate for the appellant also lays down relying on the text of Section 340, that “if the Court is of the opinion that an enquiry should be held”, it can be ordered. 12. In the present case as is noted herein above, the learned Court had applied mind, scrutinized the papers and found that, the applicant though pleaded that the appellant in said appeal, against whom action under Section 340 was sought, was alleged to be appearing in the execution proceeding, however, this pleading was not supported by the very evidence in the form of Roznama relied upon by him. 4 13. It is seen that the appellant has not brought any other material on the basis of which learned District Judge could have, prima facie, concluded that it was a fit case for enquiry and trial. Solitary piece of evidence relied upon by the appellant herein did not support the plea. 14. In this background, it can be seen that the Court was satisfied that any further enquiry in the matter is not necessary, and if done that would amount to loosing time of the Court. 15. The registration of the case as Misc. Judicial Case was a ministerial act. What is and was important is application of mind to decide as to whether there exists prima facie case to proceed against the accused (the respondent against whom the action is proposed). It is on the line and same degree of satisfaction as required to be seen before ordering issue of process in a case on complaint under Criminal Procedure Code. 16. Therefore, the complainant was under obligation to make out the description of the offence complained of. On the facts of present case, on the 5 basis of the material on record, it was not prima facie made out that the respondent was regularly attending the Court. 17. In these premises, this Court is satisfied that the impugned order does not call for interference. Appeal is rejected. Judge |mule|