1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1975 OF 2009 Sarla W/o.Kedarnath Lahoti Age-35 years, Occu-Business, R/o.Laxmi Co-op. Society, Near Railway Bridge, Ahmednagar APPLICANT VERSUS Premchand S/o.Chandmal Lodha Age-50 years, Occu-Business, R/o.Jalna Road, Beed RESPONDENT Mr.A.M.Gholap, learned counsel for applicant. Mr.V.A.Dhakne, learned counsel for respondent. (CORAM : A.V.POTDAR, J.) DATE : 03/12/2009 ORAL JUDGMENT : 1. Heard learned counsel for applicant followed by the submissions of learned counsel appearing for respondent. 2. By the present application, the applicant has prayed to quash and set aside the order dated 09/02/2009 passed by the learned J.M.F.C. Court No.1 Ahmednagar in Cri.M.A.No.551/2008. 3. Considering very small issue involved in the application, Rule. 2 Rule made returnable forthwith. By the consent of parties, the application is finally heard at the stage of admission itself. 4. Considering the submissions across the bar, it appears that the respondent herein has filed STC No.109/2006 in the Court of C.J.M. Beed u/s. 138 of The N.I.Act. The process issued in the said complaint was challenged by the applicant herein on the point of want of territorial jurisdiction. It appears that the said application was rejected against which Criminal Application no.1375/2008 was filed before this Court. Vide order dated 05/08/2008, the said application was allowed in terms of observations in para no.5 of the said order. Para no.5 is reproduced as under : “Faced with the difficulties mentioned above, learned advocate Mr.Godsay S.M. seeks liberty to file the criminal complaint before appropriate Court at Ahmednagar. In view of the settled legal position and judgment of this Court in “Vilas Kundanmal Lodhe versus State of Maharashtra and another” (Criminal Application No.4349/2007), the application is allowed. The proceedings of the criminal complaint case bearing S.C.C. No.109/2006 (S.C.C.No. 45/2006) are quashed. Liberty to file the proceedings on same set of allegations/averments before the appropriate Court at Ahmednagar. The concerned criminal court may take into account the time spent in proceedings of the criminal application before this Court and before the Criminal 3 Court at Beed. If such request is made for condonation of delay and such application be decided on its own merits after hearing both the sides.” It further appears that in view of this order, the record and proceeding in the Court of C.J.M. Beed in connection with CR No. 109/2006 was taken for presentation in the Court of J.M.F.C. Ahmednagar alongwith the application for condonatioin of delay. After hearing the parties concerned, the Learned J.M.F.C. Ahmednagar has condoned the delay and issued process against the present applicant. Hence the order of issuance of process is under challenge by way of present criminal application. 5. During the course of submissions across the bar, my attention is drawn towards the observation in para no.5 of the order dated 05/08/2008 which I have reproduced supra, wherein it is observed that the liberty was granted to present respondent to file the proceedings on the same set of allegations and averments made before the appropriate Court at Ahmednagar, does not mean Exh.1 i.e. complaint filed in the Court of C.J.M. Beed to be withdrawn and the same to be filed alongwith the application for condonation of delay. Reliance is placed upon Rule (i) of Chapter (xx) of The Criminal Manual, which prohibits for return back the original record except the documents to be produced in either Court, but not the pleadings of the parties concerned, and in this connection, it is brought to my notice that the complaint which was lodged in the Court of C.J.M. 4 Beed, either Exh.1 was taken out, which was quashed by the order dated 05/08/2008 and was presented alongwith the application for condonation of delay, which is not permissible in Law. 6. While contesting these submissions, it is urged across the bar on behalf of respondent that the liberty was granted to respondent to file the proceeding on same set of facts and hence the proceeding was filed in the court of J.M.F.C. Ahmednagar alongwith application for condonation of delay which is in accordance with Law. 7. Leave to file the proceeding on same set of facts is different than allowing to withdraw the complaint filed in the Court of C.J.M Beed and to file the same in the Court at Ahmednagar. This issue is dealt in the matter of Dipti kumar Mohanty, versus Videocon Industries Ltd., reported in 2009(5) Mh.L.J. 273, wherein the complaint filed u/s. 138 of The N.I.Act, was challenged about the issuance of process on the ground that the Court pass the order of issuance of process having no territorial jurisdiction. In para no.18 of the said judgment, it is observed that the private complaint filed in that Court is returned to the complainant for presentation in the proper Court of Law. In the premise, as the complaint itself returned to the original complainant for presentation in the proper Court of Law, the complaint was returned. On reading the observations in para no.5 of the order dated 05/08/2008, no order is passed for return of complaint for presentation of same in the proper Court of Law, but leave is granted to respondent to file the proceeding on same 5 set of averments means, leave was granted to file the fresh complaint if so desire and not to withdraw the same complaint which is quashed and to file alongwith the application for condonation of delay. In the premise, the order of issuance of process dated 02/02/2009 in Cri.M.A.No. 551/2008 by M.J.F.C. Court No.1 Ahmednagar is liable to be quashed and set aside and accordingly the order of issuance of process is quashed and set aside. 8. Rule is thus made absolute as indicated above. But it is made clear that in view of the observations in para no.5 of the order dated 05/08/2008 passed in Criminal Application No.1375/2008, still leave is granted to respondent to file a fresh complaint on the same cause of action in the Court at Ahmednagar. The respondent is also at liberty to file this complaint alongwith the application for condonation of delay. If such application for condonation of delay is filed alongwith the fresh complaint, then while deciding the application for condonation of delay, the Trial Court to sympathetically consider all these facts which gave rise for delay in filing the complaint in the Court of J.M.F.C. Ahmednagar. With this clarification, criminal application stands disposed of. (A.V.POTDAR, J.) khs/DEC 2009/cri.appl.1975-09