* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 5801 OF 2009 Vijay Vasant Angne .......Petitioner/Orig.Accused V/S. Dr. Vijay N. Deshpande & Ors. .......Respondents/Orig.Complainant ---------- Mr. Chandnani i/by. M/s. Laxmi Associates, advocate for applicant-petitioner. Mr. S.V. Marwadi, adv.for respondents no.1 and 2. Ms. S.V. Gajare, APP for State-respondent no.4. CORAM :- S.C. DHARMADHIKARI, J. DATED :- 5 th JANUARY, 2010. P.C. :- 1. Heard Mr. Chandnani appearing for the petitioner and Mr. Marwadi appearing on behalf of respondents no.1 and 2, the original complainants. 2. By prayer clause (a) of this petition, the petitioner seeks the following relief : (a). “ that this Hon ble Court may be pleased to call for the records and ’ proceedings pertaining to R.C.C. No.135 of 2008 pending in the court of Chief Judicial Magistrate, Thane and after perusing the same, this Hon ble ’ Court may be pleased to quash and set aside the order dated 1st * 2 * December, 2009 Exhibit, hereto and this Hon ble Court may be pleased to ’ quash the said complaint and all the proceedings therein.” 3. In all fairness, Mr. Chandnani appearing on behalf of the petitioner has invited my attention to the orders passed by this court in two previous applications filed by this very petitioner. 4. On 28/7/2009 in Criminal Application No. 2776 of 2008, this court made the following order : 1. “ Allowed to withdraw with liberty to participate in the investigation and file appropriate proceedings as may be advised in accordance with law. 2. The direction of this Court dated 25th August, 2008 to the Investigating Agency to give 72 hours notice inn writing to the applicant before any coercive steps are taken, shall remain in force till the investigation is over.” 5. In Criminal Application No. 3799 of 2009 on 1/09/2009 after hearing the counsel for both sides, this court made the following order : 1. “ This application is moved under Section 482 CrPC read with Article 227 of the Constitution of India, inter-alia, for quashing the complaint and the orders passed therein. 2. Mr. Marwadi, the learned counsel for respondent no.1 points out that an identical prayer was made in an earlier application under Section 482 being Criminal Application No.2776 of 2008. That application was allowed to be withdrawn on 28.7.2009 at the request of the applicant who was granted liberty to participate in the investigation and file appropriate proceedings, as may be advised, in accordance with law. 3. The learned counsel for respondent no.1 objects to this application on the ground that the same reliefs cannot be claimed now. 4. Mr. Chandnani, the learned counsel for the applicant, submits that this Court had permitted filing of appropriate proceedings as may be * 3 * advised, in accordance with law, and that means that the applicant was allowed to approach this Court again. This submission is not correct. This court had not granted permission to withdraw with liberty to file fresh proceedings which is the usual terminology used, when such permission is granted to file a fresh petition. The learned counsel for the applicant further submitted that there are some orders passed by the trial court which resulted in miscarriage of justice. Admittedly, those orders are not passed after 28.7.2009 when the applicant was allowed to withdraw the petition. Hence, this application is dismissed. 5. At this stage, the learned counsel for the applicant seeks stay of the investigation for a period of four weeks. There is no reason to grant such stay. The prayer made for stay is rejected.” 6. According to Mr. Chandnani, the present application is maintainable because it seeks to impugn an order dated 01/12/2009 on an application made by the present petitioner in the aforementioned criminal case being Criminal Case No. 135 of 2008. Mr. Chandnani, submits that in the application, copy of which is at page-181 of the paper-book the applicant/petitioner sought relief under Section 245(2) CrPC. Mr. Chandnani, submits that the petitioner has filed four criminal complaints being Criminal Complaints No. 1865, 1974, 1977 and 1978 of 2006 in the court of Judicial Magistrate First Class, Thane against respondents no.1 and 2. These complaints are invoking the jurisdiction of the said court under Section 138 of the Negotiable Instruments Act, 1888. The learned Magistrate taking cognizance of the said complaint, issued process on 01/08/2006. The process was issued in all the four complaints. The order of issuance of process came to be impugned by respondents no. 1 and 2 in * 4 * Criminal Revision Applications No. 214 to 217 of 2006 in the court of Sessions at Thane. However, respondents no.1 and 2 have withdrawn the said criminal Revision Applications. Inviting my attention to the allegations in the complaint made by respondents no.1 and 2, Mr. Chandnani submits that it is nothing but a counter-blast to the petitioner s complaint filed under Section 138 Negotiable ’ Instruments Act. Further, according to Mr. Chandnani, evidence is being led in the complaints filed by the petitioner. By producing an extract of the examination-in-chief recorded on 18/2/2008, Mr. Chandnani submits that in the criminal complaints filed by the present petitioner, the original loan agreement is marked as exhibit, original promissory note is also marked and further the original cheques and bank memos. 7. In these circumstances, Mr. Chandnani submits that the Magistrate could not have passed any order directing investigation in a complaint made by respondents no.1 and 2. This complaint is a counter blast and is a gross abuse of the process of the court. Further, the Magistrate taking cognizance of the complaints of the present petitioner, had not even permitted the Investigating Officer to take extracts of the documents produced in the court. That application made by the Investigating Officer is rejected. In these circumstances, what further investigation is contemplated, what could be the outcome of the complaint which is ex-facie malicious, is not clear. In these circumstances, the application made by the present petitioner invoking the * 5 * jurisdiction of the trial judge under Section 245(2) CrPC could not have been dismissed purely on the ground of maintainability. 8. Mr. Chandnani, submits that the view taken by the learned Judge is contrary to the express provisions and particularly to the law laid down by the Hon ble Supreme Court in the case of ’ Ajay Kumar Ghose V/s. State of Jharkhand in Criminal Appeal No. 485 of 2009 (Arising out of SLP (Cri.) No. 5196 of 2006 decided on 18/03/2009 (reported in 2009 (4) Scale 267) and the earlier decision of the Hon ble Supreme Court in the case of ’ Cricket Association of Bengal and Ors. V/S. The State of West Bengal and Others reported in A.I.R. 1971 S.C. page 1925. Mr. Chandnani, submits that the view taken is also contrary to the law laid down by the Supreme Court in the case of Eicher Tractor Ltd & Ors. V/s. Harihar Singh & Anr. in Criminal Appeal No. 1755 of 2008 (Arising out of S.L.P. (Cri.) No.861 of 2007) (reported in 2008 (12) JT 661). 9. I am unable to accept any of these contentions of Mr. Chandnani for more than on reason. As is rightly pointed out by Mr. Marwadi appearing on behalf of respondents no.1 and 2, it is not open for the petitioner to now seek the same relief of quashing of Criminal Case No. 135 of 2008, when the same was specifically prayed for in two earlier applications filed in this court. The order reproduced by me herein above is clear. Assuming that the petitioner was not satisfied with these orders, his remedy was to challenge atleast the * 6 * order passed in Criminal Application No. 3799 of 2009. That he has admittedly not done. Therefore, the relief insofar as quashing of this criminal complaint is concerned, cannot be granted in the third round of litigation. That would be contrary to judicial discipline and amount to sitting in judgment over the decision of the learned Single Judge of this court. The petition to that extent is clearly not maintainable and deserves to be dismissed. 10. As far as the second objection of Mr. Chandnani is concerned, assuming that this court granted liberty to the petitioner to initiate appropriate proceedings and a discharge application could have been filed, yet, as has been rightly observed by the learned trial Judge, the application for discharge could have been entertained pursuant to the completion of investigation in Criminal Case No. 135 of 2008. All that the learned Trial Judge has done is to direct investigation by invoking his powers under Section 156(3) CrPC. Undisputedly, such an direction is nothing but registration of an FIR and the police is therefore empowered to investigate the matter. On conclusion of the investigation, the provisions of the Code are clear and the Magistrate has observed that in the peculiar facts of this case, if a report is made to him, only then can he exercise his further powers and take cognizance. In the peculiar facts of this case, Mr. Marwadi is right in his submission that no final report pursuant to the investigation has been filed. The matter remains at the stage of the direction under Section 156(3) CrPC. Beyond that, there is nothing on the * 7 * file of the learned Magistrate. In these circumstances, the view taken that the application made by the present petitioner invoking the trial court s jurisdiction ’ under Section 245(2) CrPC is premature, cannot be said to be perverse or vitiated by an error apparent, so as to call for interference in my writ jurisdiction. In the peculiar facts of the case, any larger controversy need not be decided. The Magistrate s view that the application could not have been made ’ before the evidence is recorded, may not strictly be sound, in the light of the clear pronouncements of the Hon ble Supreme Court in the field. However, for ’ the present case and in the peculiar facts of this case, this controversy also need not be gone into any further. 11. Finding that the conduct of the petitioner in repeatedly approaching this court for the same relief and also the trial court s view not being vitiated by ’ any perversity or error apparent, there is no alternative but to dismiss the petition. The petition is accordingly dismissed. 12. . At this stage, Mr. Chandnani requests that the investigation commenced pursuant to the order of the trial magistrate should not proceed further for a period of 4 weeks from today, to enable him to challenge this order further in the Hon ble Supreme Court. In the view that I have taken, this request cannot ’ be granted. The request is rejected. [S.C. DHARMADHIKARI, J]