1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4595 OF 2009 Mr. Prabhat Jhunjhunwala & Anr. ... Applicants. V/s. M/s. Unicom Skytech Ltd. & Anr. ... Respondents. Mr. S.V. Kotwal for the Applicants. Mr. Mohan Tekavde with Ms. Swati Tekavde, Sachin Dere, Pramod Sonawane, Ms. Jayshree Gade for Respondent 1. Mr. A.S. Shitole, APP for the State. CORAM : S.C. DHARMADHIKARI,J. DATED : 18th JANUARY 2010. P.C. :- Rule. Respondents waive service. By consent Rule made returnable forthwith. 2. This application seeks setting aside of an order passed by the Revisional Court in Criminal Revision Application No. 441 of 2009. 3. By the order under challenge delivered on 6th May 2009, the Revisional Court has allowed the Revision Application preferred by the First Respondent and set aside the order dated 21st February 2009 passed by the learned Metropolitan Magistrate, 18th Court, Girgaon, Mumbai in CC 3/I & R/2009 dismissing the complaint. The operative part of the order reads thus :- 2 “1. Criminal Revision No.441/09 is allowed. 2. The Impugned Order dated 21/02/2009, passed by the Ld. Metropolitan Magistrate, 18th Court, Girgaon, Mumbai, in C.C.No.3/I&R/2008, dismissing the Complaint, is set aside. 3. The Complaint of the Complainant is restored. The Ld. Magistrate is directed to issue process against both the accused as per law, as per the allegations made out in the Complaint. 4. The copy of this Judgment be sent to Lower Court.” 3. The only contention raised before me by Mr. Kotwal, learned Counsel appearing on behalf of the Petitioner is that neither did the First Respondent i.e. the Petitioner – Original Complainant joined him as a party to the Revisional Application nor was he heard before the Additional Sessions Judge allowed the said Revision Application. 4. It is a common ground that the First Respondent filed a complaint alleging commission of offences punishable under Section 409, 467, 468, 471 and 120B of I.P.C. against the Petitioner – Accused and his wife. It is not necessary to refer to the complaint allegations in detail inasmuch as the said complaint was placed before the Metropolitan Magistrate 3 Court, 18th Court, Girgaon, Mumbai and the learned Magistrate heard the Complainant and held that prima-facie there is no case made out by the Complainant to show that the Accused in furtherance of their common intention prepared false documents. Therefore, from the complaint and verification placed before the Court, it appears that there was a dispute between the parties and which is pending before the Company Law Board. Therefore, no prima-facie case is made out and there is no just and sufficient cause for proceeding against the accused. Therefore, the request to issue process was turned down and the complaint is dismissed under Section 203 of Cr.P.C. Aggrieved by this order the 1st Respondent approached the Sessions Court invoking the Revisional Jurisdiction and the learned Judge after hearing the Complainant’s Advocate so also the State represented by the learned A.P.P. set aside the order of the Magistrate and directed him to issue process against the present Applicants. In furtherance of this direction, process has been issued and therefore, the Petitioner has approached this Court. 5. Mr. Tekavde, learned Advocate appearing on behalf of the First Respondent/Complainant places reliance upon a decision of a Division Bench of this Court reported in 2008 Cri.L.J. 3764 (Kiran Gokuldas Kalantry v/s. Dr. Prithi Paul Singh Sethi). 6. The question before this Court and more particularly, the Division Bench was that the complaint/FIR/MECR was 4 registered pursuant to Magistrate’s order under Section 156(3) of the Cr.P.C. offences punishable under Section 409, 419 and 420, etc. were held to have been committed. Reliance was placed upon the negative report of the Investigating Officer and initially the Magistrate accepted this report and dismissed the complaint. Thereafter, the matter was carried in the Writ Petition to this Court, the Writ Petition was disposed off by consent and the order based upon the negative report was set aside. That was set aside by consent of parties. Thereafter, Police Authorities were directed to complete the investigation as early as possible. The Special Leave Petition from this order came to be rejected and thereafter, the Application dated 2nd February 2008 before this Court came to be filed. The principal prayer was to recall the earlier order by consent and to permit intervention in the matter as a Respondent. It is in that context and observing that at the stage of issuance of process, the accused need not be heard that the Division Bench observed that no prejudicial order has been passed. In fact, reference has been made to Section 401 of the Cr.P.C. and that aspect was noted but this Court observed that in that case this Court exercised its powers under Article 226 of the Constitution of India read with Section 402 of the Cr.P.C., I do not see how observations in this Judgment are of any assistance to Mr. Tekavde. 7. On the other hand, even if the revisional powers of the Court of Sessions are noted, yet, once the Court decides to pass an order against the interest of the Accused or other 5 person that may not be done by the Court unless the Court gives him an opportunity of being heard either personally or through an Advocate. That is a principle which is squarely attracted not only when this Court exercises its revisional powers but also when such powers are exercised by the Sessions Court. That is the clear reading of Section 399(2) of Cr.P.C. In such circumstances and when all this has been noted by the learned Single Judge of this Court in a decision reported in 2006 All M.R.(Cri.) 1311 (Shriram s/o. Nagordhar Mahajan V/s. State of Maharashtra & Anr.), I am of the opinion that the order under challenge cannot be sustained and deserves to be set aside. 8. The Sessions Court was aware of the fact that the complaint came to be dismissed by the Trial Court. It is against that order passed under Section 203 of the Cr.P.C. that the Original Complainant filed the Revision Application. When the Court passed an order in the interest of Petitioner – Accused, then, it was incumbent in the peculiar facts so also considering Sections 401 and 409 of Cr.P.C. That the Sessions Court to issues notice and hears him either through his Advocate or in person. In the entire order it is apparent that such course was not at all adopted. In fact, the Petitioner has been prejudiced by the course adopted by the learned Sessions Judge. Principles of natural justice require that in such cases before adverse order is made, the principle of Audi Alteram Partem should have been followed. 6 9. In the result, Rule is made absolute. The order of the Revisional Court dated 6th May 2009 is quashed and set aside. The Revision Application is restored to the file of the learned Judge for hearing afresh on merits and in accordance with law, after amending the memo thereafter, so as to implead the present Petitioner as the Second Respondent. The Sessions Judge to permit the memo of the Revision Application to be amended and after issuing notice to the Second Respondent – Petitioner before me shall place the Revision Application for hearing. He shall decide it without being influenced by any of the observations in the earlier order. It is clarified that this Court has not expressed any opinion on the merits of the controversy. 10. The Revision Application is allowed to be amended within a period of two weeks from the receipt of the copy of this order and the Sessions Court should endeavor to dispose off the Revision Application within six weeks thereafter. Needless to state that the consequential order issuing process in pursuance of the Revisional Court’s order does not survive and is accordingly set aside. 11. Application allowed accordingly. (S.C. DHARMADHIKARI,J.)