2013 ALL MR (Cri) 4402
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
A.M. THIPSAY, J.
Ratnadeep S/O. Ramkrushna Makode Vs. The State Of Maharashtra & Anr.
Criminal Writ Petition No. 714 of 2013
20th September, 2013
Petitioner Counsel: Mr. VIVEKANAND B. DESHMUKH
Respondent Counsel: Mr. G.R. INGOLE
Negotiable Instruments Act (1881) S.138 - Criminal P.C. (1973), S.204 - Issue of process - Challenge to - Contention that notice of demand was not issued within 30 days - Also notice of demand was not produced before Magistrate - Sessions Judge casually observed that Magistrate has seen copy of notice of demand - However, Magistrate nowhere mentioned that he had seen said notice and he merely made a general reference to the "documents in the matter" - It cannot be presumed that Magistrate had seen copy of demand notice - It was necessary to ascertain whether notice was issued within 30 days, but Sessions Judge did not - Matter remanded back. (Paras 9, 10)
6. Respondent No.2 has filed a complaint against the Petitioner alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act. The Judicial Magistrate, First Class, Osmanabad issued process against the Petitioner requiring him to appear and answer to the charge of the aforesaid offence. Being aggrieved by the order issuing process, the Petitioner approached the Court of Sessions by filing an application for revision. The revision application came to be dismissed by an order dated 12th July, 2013 passed by the learned Sessions Judge, Osmanabad. Being aggrieved thereby, the Petitioner has approached this Court invoking its constitutional jurisdiction.
7. A perusal of the order passed by the learned Sessions Judge, indicates that there has been no application of mind with respect to the contentions raised by the Petitioner challenging the order issuing process. One of the contentions raised by the Petitioner is that the notice of demand had not been issued within 30 days as contemplated by the provisions of Section 138 of the Negotiable Instruments Act. His contention flowing from the previous one, was also that the notice of demand was not shown or produced before the Magistrate, as was apparent from the list of documents that had been filed by Respondent No.2 before the Magistrate.
"Learned JMFC has observed " that, he has sen the record meaning thereby, he has seen the copy of notice or such document in the form of notice served on petitioner on record. Thus there is no illegality or irregularity to admit the revision on record. Hence,
Revision petition is disposed of, as rejected, without notice to respondents."
9. This reasoning of the learned Sessions Judge and the casual manner of dealing with the contentions raised in the revision petition, cannot be appreciated. It may be observed that the learned Magistrate had nowhere mentioned that he had seen a copy of the demand notice and he had merely made a general reference to the 'documents in the matter' (*0#>$@2>&*$G).
10. It, therefore, cannot be presumed that he had seen a copy of the demand notice, which was allegedly, served on the Petitioner. Moreover, it was necessary to ascertain whether it had been issued within 30 days.
11. In my opinion, the order passed by the Sessions Judge dismissing the revision application needs to be set aside and the matter needs to be remanded back to the Sessions Judge with a direction to consider the revision application afresh, on merits, and in accordance with law.
The order dated 12th July, 2013 passed by the learned Sessions Judge, Osmanabad in Revision Application No.66 of 2013, is set aside.
13. The revision application be restored to file of the learned Sessions Judge, Osmanabad, who shall consider the same afresh and decide it in accordance with law, keeping in mind the contentions raised by the Petitioner in the revision petition and the observations made in the present order.