TUSHAR VAJUBHAI GAGLANI Vs. JAGDEESH J VASWANI

JUDGEMENT

(1.) - The short question which is involved in this petition is whether the learned Magistrate could issue the notices to the proposed accused to show cause why the process be not issued against them for the alleged offences under sections 406, 408 and/or 420 read with section 34 of indian Penal Code.

(2.) THE respondent No. 1 - complainant had filed private complaint in the Magistrate s Court being RCC No. 154 of 1992 alleging the commission of offences under sections 406, 408 and/or 420 read with section 34 of Indian Penal Code against five accused. The learned Magistrate recorded the verification statement of the complainant. After going through the verification statement the learned Magistrate was of the view that it was necessary to issue show cause notices to the proposed accused as to why the process be not issued against them. Hence, the impugned order was passed issuing show cause notices to the proposed accused. That order is under challenge in this petition filed by the petitioner original accused No. 5.

(3.) MR. Gupte the learned counsel appearing on behalf of the petitioner rightly contended that the impugned order could not be passed in law as the courses open to the learned Magistrate were only, either to issue process, if prima facie case is made out or postpone the same or in the third place for the matter for enquiry under section 156 (3)of Criminal Procedure Code. The course adopted by the learned Magistrate is not open under the Criminal Procedure code and, therefore, the show-cause notice is liable to be quashed.