1 CRIMINAL REVISION NO.: 155 OF 2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CRIMINAL JURISDICTION CRIMINAL REVISION NO.: 155 OF 2009 *** Shivaji S/o Dnyanoba Nakade, Age: 34 years, Occ.: Agril., R/o Hatola, Tq. Ashti, District Beed. ... APPLICANT/ ORIGINAL ACCUSED. VERSUS 1. The State of Maharashtra (Copy to be served through P.P. High Court of Bombay Bench at Aurangabad). 2. Ratan S/o Maruti Shinde, Age: 45 years, Occu.: Doctor, R/o Loni Sayyed Mir, Tq. Ashti, District Beed. ... RESPONDENTS [NO.2 ORIG. COMPLAINANT] *** Mr. B. R. Kedar, Advocate h/f Mr. A. M. Nagarkar, Advocate for the Petitioner. Mr. S. G. Nandedkar, A.P.P. for the Respondent No. 1. Mr. S. S. Bora, Advocate for Respondent No.1. *** CORAM: A. V. POTDAR, J. DATED:- 20th SEPTEMBER, 2011. ORAL JUDGMENT: 1. Rule. 2. Rule made returnable forthwith, heard finally by consent of the parties. 2 CRIMINAL REVISION NO.: 155 OF 2009 3. This Criminal Revision is directed against the order dated 7th of May, 2009 passed by learned J.M.F.C., Ashti, Taluka Beed, below Exhibit-75 in SCC No.578 of 2003 newly numbered as RCC 85/2009). 4. I have heard learned counsel for the Revision Applicant / original accused followed by the submissions of learned counsel for the Respondent NO.2/ original complainant and learned A.P.P. appearing for the Respondent/ State. 5. Such of the facts, which are necessary for the just decision in this criminal revision, can be summarised as follows: (a) Respondent No.2 herein has filed a complaint before the learned J.M.F.C., Ashti for the alleged offence under section 138 of the Negotiable Instruments Act read with section 420 of Indian Penal Code against the present applicant alleging that the applicant and Respondent No.2 are acquainted with each other due to their previous association and acquaintance. Respondent No.2 is by profession a Veterinary Doctor while the applicant in the revision application is a contractor and social worker. Because of their acquaintance and it is alleged that the applicant is always in dire need of financial assistance for 3 CRIMINAL REVISION NO.: 155 OF 2009 his business of contract, it is alleged that the applicant approached the Respondent No.2 requesting him to advance hand loan of Rs.1 Lac which he is in dire need to pay certain bills. At that time, relying on the assurance of the applicant, the Respondent No.2 advanced Rs.65,000/- to the applicant. It is further alleged that after Rs. 65,000/- were advanced by Respondent No.2 to the Applicant, the Applicant tried to avoid to meet the Respondent No.2. It is further alleged by the Respondent No.2 that he repeated demand for repayment of the loan advanced by him to the Applicant. It is stated that lastly on 10th July, 2003 the Applicant issued cheque bearing No.798371 signed by him to the Respondent No.2. The said cheque was deposited by Respondent No.2 in his bank account in State Bank of Hyderabad Branch Doithan. The cheque was returned with the remarks "not arranged for and drawers signature differs". This cheque returned with the requisite bank memo from the bank concerned. It is further averred that when the Respondent No.2 inquired with his bankers about non-encashment of the cheque he learnt that the cheque was drawn by the applicant on the account of his wife. Thus, according to him, the 4 CRIMINAL REVISION NO.: 155 OF 2009 Applicant has cheated him by issuing the cheque on the account of somebody else which is an offence according to him under section 420 IPC. It is further alleged that, thereafter, notice was issued by Respondent No.2 to the Applicant on 13th July, 2003 which was returned with the remarks that the Applicant is not found present at his address at his village. Hence, the complaint. It further appear that this complaint was numbered as SCC 578 of 2003. After recording the verification, learned Magistrate initially issued the process against the present Applicant for an offence under section 138 of the Negotiable Instruments Act. (b) It further appears that during the pendency of this complaint on 28th of July, Respondent No.2 moved an application before the lower Court under section 319 (1) read with section 216 of Cr.P.Code requesting to add wife of the present applicant as a party accused in the complaint and also to amend/ add the charge under the provisions of section 216 of the Code of Criminal Procedure for the offence under section 420 and 468 of the Indian Penal Code. It appears that by filing say, the present applicant has contested that application. It further appear, by his order dated 7th May, 2009 5 CRIMINAL REVISION NO.: 155 OF 2009 the application filed by Respondent No.2 at Exhibit-75 was partly allowed by the learned Magistrate. By his order dated 7th May, 2009 learned Magistrate rejected the application to the effect to add wife of the applicant as party accused in the said complaint under the provisions under section 319 (1) of the Code of Criminal Procedure but allowed the application to the extent to add charge under section 420, 468 of the Indian Penal Code which order is impugned in this criminal revision. 6. During the course of submissions across the Bar, learned counsel appearing for the Applicant urged that the complaint for an offence under section 138 of the Negotiable Instruments Act is to be tried summarily while the offence under section 420, 468 of the Indian Penal Code cannot be tried summarily but it has to be tried as a warrant trial case. According to him, and the procedure laid down under the Code of Criminal Procedure, in the trials to be tried summarily, plea of the accused is to be recorded as required under section 251 of the Code of Criminal Procedure by explaining the substance of the accusations and the particulars therein to the accused which is generally known as 6 CRIMINAL REVISION NO.: 155 OF 2009 to record the plea of the accused and if the accused pleased not guilty then the evidence of the complainant is to be recorded. Thereafter, in case the accused intend to lead defence evidence, after his examination under section 313 Cr.P.Code, the case is to be disposed of in accordance with law. But insofar as the procedure laid down to conduct the trial as warrant case on the report to the Magistrate, other than the report to the police, then the procedure as required under Chapter XIX sections 244 to 247 of the Code of Criminal Procedure has to be followed. 7. It is brought to the notice that even though there are some of the contents/ averments in the complaint related to the offence under section 420 IPC the learned Magistrate, admittedly, has not issued the process for the offence under section 420 of IPC. Learned Magistrate intend to add the charge under section 420, 468 of IPC merely on the application moved by Respondent No.2 vide Exhibit/75 and by allowing that application partly, learned Magistrate intend to add the charge for an offence under section 420, 468 of IPC. 8. Learned counsel for applicant urged that without following the procedure, as required under 7 CRIMINAL REVISION NO.: 155 OF 2009 section 244 to 247 Cr.P.Code, the learned Magistrate cannot proceed with the charge for an offence under section 420 IPC which is tobe tried as a warrant trial. Admittedly, learned Magistrate has not commenced the recording of the evidence of the complainant before charge as contemplated under section 244 Cr.P.Code. Learned Magistrate, if intend to frame the charge without following the requisite procedure as contemplated under sections 244 to 247 of Chapter XIX of the Code of Criminal Procedure, then the entire trial vitiate. Considering this aspect and as the procedure as provided under Chapter XIX of the Code of Criminal Procedure, which is admittedly not followed by the learned Magistrate while allowing the application at Exhibit-75, the order passed by the learned Magistrate, impugned in this Revision, ought to be quashed and set aside. In the result, the Revision Application succeeds. The order impugned, passed below Exhibit-75 in SCC No.578 of 2003 by learned J.M.F.C., Ashti is quashed and set aside. Rule is thus made absolute. Criminal Revision stands disposed of accordingly. 9. Before parting with the judgment, it is hereby clarified that if the learned Magistrate intend to 8 CRIMINAL REVISION NO.: 155 OF 2009 proceed against the applicant for the offence under section 420 IPC then he has to follow the procedure as contemplated under Chapter XIX Sections 244 to 247 Cr.P.Code. [A.V.POTDAR, J.] Dated:20/09/2011. ans/155 9 CRIMINAL REVISION NO.: 155 OF 2009 CRIMINAL REVISION NO.: 155 OF 2009 Date of decision: 20th SEPTEMBER, 2011. For approval and signature THE HONOURABLE SHRI JUSTICE A. V. POTDAR, J. Whether Reporters of local papers ... Yes may be allowed to see the judgment? To be referred to the Reporter or not? ... No Whether Their Lordships wish to see ... No fair copy of the judgment? Whether this case involves a substantial... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? Whether it is to be circulated to the ... No Civil Judges? Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE