1 APPLN 2977 OF 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2977 OF 2010 Dattatraya Dhondiba Pawar .... Applicant. v/s M/s OMEGA Investment & Properties Ltd. & Anr. .... Respondents. Mr. Amol Patankar with Ms. B.N. Suryawanshi for the applicant. Mr. Jatin Shah for Respondent No.1. Mrs. M.R. Tidake, APP for the State. CORAM: V.M. KANADE, J. DATE : 19th November, 2010 P.C:- 1. Heard the learned Counsel appearing on behalf of the applicant and the learned Counsel appearing on behalf of Respondent No.1 2. Applicant has filed this application under section 482 of the Criminal Procedure Code challenging the order dated 09/02/2007 passed by the learned Metropolitan Magistrate, 2 APPLN 2977 OF 2010 23rd Court, Esplanade, Mumbai issuing process in a complaint filed by Respondent No.1 under section 138 of the Negotiable Instruments and also challenging the order dated 04/03/2010 passed by the Additional Sessions Judge, Mumbai. 3. The learned Counsel appearing on behalf of the applicant submitted that the verification recorded by the learned Magistrate is not in accordance with the guidelines laid down by this Court in Amarnath Baijnath Gupta & Anr. vs. Mohini Organics Pvt. Ltd.1. Secondly, it is submitted that the mandatory provisions of section 202 have not been complied with and the learned Magistrate has issued process without holding an inquiry as contemplated under the said provisions particularly when the applicant is residing at Pune which is outside the jurisdiction of the trial court. 4. On the other hand, the learned Counsel appearing on behalf of Respondent No.1 submitted that the process was issued on 09/02/2007. Plea was recorded on 21/07/2007. Affidavit in lieu of evidence was filed on 17/08/2007. He submitted that about 45 adjournments were taken by the applicant and the complainant’s witness was not cross- examined. He submits that even cross-examination of the complainant was over on 22/07/2010. It is then submitted that the application was filed challenging the jurisdiction of the Trial Court under section 201 of the Criminal Procedure 1 2009 ALL MR (Cri) 184 3 APPLN 2977 OF 2010 Code. The said application was rejected by the Trial Court by order dated 07/09/2009. This order was challenged in the Sessions Court in revision and the Sessions Court by order dated 04/03/2010 rejected the revision application filed by the applicant. He submitted that the said order passed by the Sessions Court is not challenged in this application. He has filed compilation of documents showing the adjournments which have been taken by the applicant herein. He has also annexed roznama. He also submitted that the applicant had relied upon the judgment of this Court in Kishor Bhikasingh Rajpur vs. Preeti Kishor Rajput1 for the purpose of taking adjournments in the Trial Court though no stay was granted by this Court. 5. After having heard both the learned Counsel at length, in my view, this is a clear case where applicant has obviously tried to protract the proceedings by filing frivolous applications. Since the plea was record on 21/07/2007 and affidavit in lieu of evidence was filed on 17/08/2007 and the cross-examination also was over on 22/07/2010, trial has commenced and, therefore, on this ground alone, it is not possible to entertain the application filed by the applicant in view of the judgment in Subramanium Sethuraman vs. Sate of Maharashtra and another2. Apart from that, applicant appears to have filed various applications at various stages. Applicant filed an application under section 201 of the Cr.P.C 1 2007(3) Bom.C.R. 279 2 2005 SCC (Cri) 242 4 APPLN 2977 OF 2010 in the Trial Court. That application was rejected by the learned Magistrate and this order was confirmed by the Sessions Court on 04/03/2010. Applicant, however, has not challenged the said order in this application. Apart from that, the applicant for the first time has filed this application challenging the issuance of process on the ground that the verification is not properly recorded and also on the ground that the process was not postponed as per the provisions of section 202 of the Criminal Procedure Code. This clearly indicates that the applicant’s obvious intention is to protract the trial under any circumstances. The roznama indicates that the applicant has taken 45 adjournments in the Trial Court after the affidavit in lieu of evidence was filed. Applicant also has tried to pressurize the trial court by relying on the judgment of this Court in Kishor Bhikasingh Rajpur vs. Preeti Kishor Rajput1 and more particularly para 8 of the said judgment which reads as under:- “8. Normally, when this Court is ceased of the matter, it is expected of the subordinate courts to stay their hands away. It is difficult to understand as to what was an alarming urgency to proceed further and dismiss the petition when the learned Judge of the Family Court was very well aware that the order dated 15th September 2006 was 1 2007(3) Bom.C.R. 279 5 APPLN 2977 OF 2010 challenged before this Court by the present petitioner. No doubt, that the learned Family Court is right in observing that there was no stay by this court. But as a matter of propriety and when the learned Judge was very much aware about pendency of the petition before this Court, the learned Judge ought to have stayed his hands away and waited till further orders to be passed by this Court. In that view of the matter, I am inclined to allow the petition.” So far as the said observations are concerned, obviously, those observations have been made in the context of the order passed by the learned Single Judge in the facts of the said case. The said observations would not apply to the summary proceedings initiated under section 138 of the Negotiable Instruments Act and unless stay is granted by the higher Court, Trial Court is not expected to stay the proceedings merely because the applicant has approached the higher Court. 6. So far as the submission made by the learned Counsel for the applicant that the verification is not proper is concerned, in my view, the said submission cannot be 6 APPLN 2977 OF 2010 accepted and, in any case, it cannot be said that this is an illegality. At the most, it could be an irregularity which is curable. In any event, the learned Magistrate, after perusing the relevant dates mentioned in the verification, has issued process and, therefore, the submission made by the learned Counsel for the applicant cannot be accepted. 7. So far as the submission made by the learned counsel for the applicant on the question of procedure under section 2002 not being followed is concerned, in my view the said provisions are directory and not mandatory as held by this Court Shri Bansilal Kabra vs. Global Trade Finance Ltd. & Anr.1. 8. This is a clear case where the applicant has tried to protract the proceedings and I have noticed that in number of cases which are filed under section 138, such applications for quashing the process are filed on frivolous grounds. Under these circumstances, it is not possible to accept the submissions made by the learned Counsel appearing on behalf of the applicant. 9. Application is dismissed. Trial is expedited. Trial Court shall decide the criminal case expeditiously within a period of six months. Applicant shall pay costs to Respondent No.1 directly which is quantified at Rs 5000/-. 1 Criminal Application No.1344/2010 decided on 09/07/2010 7 APPLN 2977 OF 2010 10. Place the matter for directions on 23/11/2010 for the purpose of finding out as to whether the applicant is willing to settle the dispute. V.M. KANADE, J.