- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.1580 OF 2004 WRIT PETITION NO.1580 OF 2004 WRIT PETITION NO.1580 OF 2004 Nasari Dairy Products Ltd. ...Petitioner vs. Smt.Shobhadevi Shinde & anr. ...Respondents Mr.Prakash Nail for the petitioner Mr.Y.S.Shinde A.P.P. for State None for the Respondent No.1. CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : JULY 31,2008 : JULY 31,2008 : JULY 31,2008 P.C.: P.C.: P.C.: 1. Heard learned Counsel for the petitioner. The petitioner filed a private complaint in the court of Judicial Magistrate (First Class), Gadhinglaj in which process was issued. The process was issued only for two offences under section 323 and 147 of the Indian Penal Code. In a petition filed by the petitioner, this court has interfered and directed that the process should be issued against the Respondents for other offences under the Companies Act and Indian Penal Code. By order dated 8th July 2002, the learned Magistrate passed an order of discharge by exercising power under sub section 2 of section 245 of the Code of Criminal Procedure,1973. The order of discharge was passed as the Petitioner failed to appear and adduce evidence. A revision application preferred by the petitioner against the said order was rejected by the learned Magistrate. - 2 - 2. The learned counsel for the petitioner submitted that the petitioner was diligently prosecuting the complaint and in fact the petitioner was in a position to adduce evidence. He submitted that if an opportunity is granted, the petitioner is in a position to adduce evidence to substantiate the charges. He, therefore, submitted that by setting aside the impugned order, the complaint be remanded. 3. I have considered the submissions. The order dated 21st July 2000 passed by the learned Magistrate shows that the Petitioner was seeking adjournment. When the complaint appeared on board on 20th June 2002, neither the petitioner nor his Advocate were present. The learned Judge passed an order recording that if on the next date the petitioner failed to lead evidence before charge, necessary order will be passed on the complaint. On 8th July 2002, when the complaint came up before the court, the learned Magistrate noted that no evidence has been adduced by the petitioner. The learned Judge referred to his earlier order passed on an application at Exh.42 in which he had observed that the averments made in the complaint and verification recorded therein was not sufficient to frame the charges in absence of any further evidence adduced by the petitioner. As the evidence was not adduced by the petitioner, the learned Judge proceeded to pass an order of discharge by exercising power under sub section 2 of section 245 of the said Code. I find no reason to - 3 - interfere with the said order as well as the order of the Sessions Court by which an order of discharge has been confirmed. The complaint was of the year 1996. After granting sufficient opportunities the petitioner could not adduce the evidence. 4. Considering all the aforesaid factual aspects, now it will be unjust to exercise power under Article 227 of Constitution of India or under section 482 of the said Code to interfere at this stage and to permit the petitioner to adduce the evidence. No case is made out for interference. Hence, petition is rejected. JUDGE JUDGE JUDGE