- 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.1749 OF 2008 WRIT PETITION NO.1749 OF 2008 WRIT PETITION NO.1749 OF 2008 Omkprakash Jagannath Parik ...Petitioner vs. Namdeo Punjaji Pangavane & Anr. ...Respondents Mr.Suresh M. Sabrad for the petitioner Mr.M.S.Karnik for the respondent no.1 Mr.Rajesh More A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : APRIL 15,2009 : APRIL 15,2009 : APRIL 15,2009 JUDGMENT : JUDGMENT : JUDGMENT : 1. By order dated 4th September 2008, notice was issued for final disposal of this petition at admission stage. The petitioner filed a complaint against the first respondent alleging commission of offence under section 138 of the Negotiable Instruments Act,1881 (hereinafter referred to as the said Act). Process was issued on the said complaint. On 8th June 2006, when the complaint was fixed for recording of evidence, an application was moved on behalf of the petitioner for adjournment on the ground that the petitioner was away for pilgrimage. An order below Exh.I was passed on 8th June 2008 which reads thus : "....Today the matter is kept for evidence. The complainant and the accused are absent called out repeated. Learned Counsel for the complainant is also absent. It reveals - 2 - that plea of the accused was recorded on 26-8-2002. Since then the matter is listed for evidence. Considering that nature of proceeding and the conduct of the complainant of non taking steps against the accused. It reveals that no purpose would be served to keep the file on board of the court for hearing. Therefore, in such circumstances the case is hereby dismissed in view of section 249 of the Criminal Procedure Code. The accused is hereby discharged of the offence punishable under section 138 of the Negotiable Instruments Act. His bail bonds stand cancelled. No order as to costs." 2. A revision application was preferred against the said order by the petitioner before the Sessions Court. The Sessions Court held that the revision application was not maintainable in as much as a remedy under section 378 of the Code of Criminal Procedure,1973 (hereinafter referred to as the said Code) was available to the petitioner. 3. The submission of the learned counsel for the petitioner is that the learned Magistrate had no jurisdiction to pass an order under section 249 of the said Code in as much as section 249 of the said Code is applicable to the trial of warrant cases and the case filed by the petitioner was a summons case. 4. The learned counsel for the first respondent invited my - 3 - attention to the impugned order. He submitted that the first part of the impugned order shows that the learned Magistrate intended to exercise power under section 256 (1) of the said Code and to dismiss the complaint on account of default on the part of the petitioner. He submitted that merely because a wrong section is referred to in the impugned order, the order does not become bad in law. His submission is that the impugned order, read as a whole, clearly shows that the learned trial Judge exercised power under section 256 (1) of the said Code and acquitted the accused. He submitted that considering the conduct of the petitioner, the learned Magistrate was justified in passing the order which he has passed. 5. I have given careful consideration to the submissions. On plain reading of the order as it stands, the learned Magistrate purported to exercise power under section 249 of the said Code. Section 249 of the said Code forms part of Chapter XIX of the said Code which deals with trial of warrant cases by the Magistrates. The present complaint is one under section 138 of the said Act. Sub section 1 of section 143 of the said Act provides that offence under section 138 of the said Act shall be tried by the Judicial Magistrate First Class and the provisions of section 262 and 265 will apply to the trial. The title of section 143 is "Power of the court to try the cases summarily". Thus trial for the offence under - 4 - section 136 of the said Act is a summary trial. The second proviso to sub section 1 of section 143 of the said Act provides that in certain cases the learned Magistrate has power not to try the case summarily. The said power can be exercised by the learned Magistrate by passing an order to that effect after hearing the parties. Thus, unless there is an order passed under sub section 1 of section 143 of the said Act, the trial will be governed by Chapter XXI of the said Code which deals with summary trials. In fact, section 262 of the said Code forming part of Chapter XXI is made specifically applicable to the trials of such offences. Sub section 1 of section 262 provides that the procedure specified under the said Code for the trial of summons cases shall be followed in case of a summary trial. A procedure for trial of summons cases by Magistrate has been laid down in Chapter XX of the said Code. Section 256 forms part of Chapter XX of the said Code which confers a power to dismiss the complaint on account of default committed by the complainant. 6. The only submission made by the learned counsel for the first respondent is that the nature of the impugned order shows that the learned Judge intended to exercise power under sub section 1 of section 256 of the said Code and while doing so he has referred to a wrong section namely section 249. 7. Power under section 249 of the said Code can be exercised - 5 - only in a trial of warrant cases. In the present case, admittedly there is no order passed by the learned Magistrate under sub section 1 of section 143 of the said Act directing that procedure for warrant case should be adopted. The orders under sections 249 and 256 of the said Code have different consequences though power vesting in the said sections is to be exercised where the complainant is absent. The order under section 249 of the said Code has a result of discharge and the order under section 256 (1) results in the acquittal of the accused. In the impugned order, the learned Judge has not only referred to the fact that the case is being dismissed under section 249 of the said Code but has also further stated that the first respondent is discharged of the offence punishable under section 138 of the said Act. Therefore, it is not possible to accede to the submission of the learned counsel for the first respondent that the learned Judge intended to exercise power under section 256 (1) of the said Code. 8. Section 249 of the said Code was not at all applicable. The net result of the aforesaid discussion is that the impugned order is illegal and the same deserves to be quashed and set aside. It must be stated here that the order of this court will not prevent the learned Magistrate from exercising power under section 256 (1) of the said Code, if the learned Magistrate finds that the hearing of the complaint has been - 6 - delayed due to absence of the petitioner. 9. Hence, I pass the following order : i) Impugned Judgment and Order dated 8th June 2006 is quashed and set aside. The complaint bearing no.SCC 700 of 2001 is restored to the file. The trial court will proceed with the complaint from the stage at which it was pending on 8th June 2006. ii) It is made clear that notwithstanding this order, it will be open for the learned Magistrate to exercise power under section 256 (1) of the said Code, if the conduct of the petitioner requires the learned Magistrate to adopt the said mode. iii) Rule is partly made absolute in above terms. JUDGE JUDGE JUDGE