HARAKCHAND BHANGCHAND OSWAL Vs. SANTILINGGAPPA BHAGWANAPPA HAPSE

JUDGEMENT

(1.) - The original complainant in Criminal Case No. 55 of 1987 on the file of J. M. F. C. , Court No. 1, Pune, has preferred this revision application against the order passed in Criminal Revision Application No. 344 of 1988 on the file of Addi. Sessions Judge, Pune. Where under the learned Additional Sessions Judge, allowed the revision and set aside the order of the learned J. M. F. C. for issue of process against the accused i. e. the present respondent Nos. 1 and 2 and quashed the proceedings in the complaint case.

(2.) BRIEFLY stated the facts giving rise to this revision application are as under: The original complainant filed a complaint against the present respondents Nos. 1 and 2 in the Court of J. M. F. C. , Court No. 1, Pune, alleging that the accused No. 2 is a Member of Balaji Cooperative Housing Society and that he had taken a Block No. 19a in the said Society and Share Certificate No. 22 is issued in his favour, that he wanted to sell the said Block and, therefore, on 24-8-1985 he had come to the complainant and had agreed to sell the said Block to the complainant for Rs. 1,25,000/- and in the presence of the witnesses had taken an advance of Rs. 1,000/- from the complainant, that the original Share Certificate and the copy of the Allotment Letter was also given to the accused respondent No. 2 and thereafter, the respondent No. 2 started avoiding to complete the said transaction in respect of the Block though the complainant was ready and willing to pay the entire amount, that the said transaction had taken place with the intervention of respondent No. 1 that letter on as the other people showed their willingness to pay more and give more commission, the respondents Nos. 1 and 2 in furtherance of their common intention by creating false document and producing the same and by cheating the complainant sold the said Block to one Suresh Paratani and this. was disclosed to the complainant on his receiving the notice reply given by the accused persons and from that it was apparent that the respondents nos. 1 and 2 right from the beginning were intending to cheat the complainant and on the basis of false promises dishonestly with the intention to cheat had induced the complainant to part with Rs. 1001/- by making the show that the Block would be given to the complainant and thereby the respondents Nos. 1 and 2 had cheated the complainant After recording verification statement of the complainant in support of the complaint, the learned Magistrate issued process under Section 420 R. W. 34 of the Indian Penal Code against respondents Nos. I and 2. It appears that along with the complaint, the complainant had also produced some documents consisting of xerox copies of Share Certificate, Allotment Letter, and Notice replies. Being aggrieved by order of the issue of process, the present respondents Nos. 1 and 2 preferred revision application to the Sessions Court and the learned Additional Sessions Judge, Pune, after hearing both the sides allowed the revision application filed by the respondents Nos. 1 and 2 and set aside the order of issue of process and quashed the proceedings. Being aggrieved by the said order passed by the learned Additional Sessions Judge, Pune, the complainant has come in revision to this Court.

(3.) ON behalf of the revision-petitioner before this Court, it is contended that the learned Additional Sessions Judge had no power while sitting in revision to interfere with the order of issue of process and quash the proceedings when the learned trial Magistrate had issued a process as prima facie offence was made out on the basis of the contents of the complaint, the verification statement and the documents produced by the complainant. The proposition that the revisional court under Section 397 has no power at all to interfere with the order of issue of process, definitely cannot be accepted as a correct one. The basis of the proposition is that the order of issue of process is an interlocutory order, and, therefore, revision against such an interlocutory order is not maintainable. Broadly speaking, normally the issue of process is an interlocutory order but it is not in all cases that the revisional court cannot interfere with the order of issue of process on the ground that it is an interlocutory order. In Madhu Limaye v. State of Maharashtra,. It is clearly laid down that Ordinarily and generally the expression interlocutory order has been understood and taken to mean as a converse of the term final order. But an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified. The Supreme Court further observed that if it were so it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred on it by Section 397 (1 ). On such a strict interpretation, only those orders would be revisable which are orders passed on the final determination of the action but are not appealable under Chapter XXIX of the Code, and, therefore, it docs not seem to be the intention of the Legislature when it retained the revisional power of the High Court in terms identical to the one in the 1898 Code. It is further observed in the said decision that though the words occurring in a, particular statute are plain and unambiguous, they have to be interpreted in a manner which would fit in this context of the other provisions of the statute and bring about the real intention of the legislature. On the one hand, the legislature kept intact the revisional power of the High Court and on the other it put a bar on the exercise of that power in relation to any interlocutory order. In such a situation it appears that the real intention of the legislature was not to equate the expression interlocutory order. As invariably being converse of the word final order; The Supreme Court further held in the said decision that the order rejecting the plea of the accused on a point which, when accepted, will conclude the particular proceeding, will surely be not an interlocutory order within the meaning of Section 397 (2 ). Therefore, even the order of issue of process in a given case may not fall within the purview of interlocutory order as envisaged under Section 397 (2 ). If the issue of process is challenged on the ground which goes to the root of the case then definitely a revision can be said to be maintainable. So if the challenge is on the ground that the complaint read together with the verification statement and the material produced by the complainant before the Magistrate does not make out a case of the alleged offence prima facie then of course the order of issue of process definitely can be challenged even by preferring a revision either to the Sessions Court or High Court under Section 397 (1 ). The broad proposition as was put by Mrs. Agarwal before me that no revision at all is maintainable against the order of issue of process is not a correct proposition in view of the decision in Madhu Limayes case to which have referred to earlier. The argument tried to be raised in this respect is more spacious than in fact it is. Therefore, in the light of the said decision it would be necessary to consider in the present case as to whether the challenge offered by the present respondents Nos. 1 and 2 goes to the root of the case. If the answer is in the affirmative, then the process issued must be held to be rightly quashed by the learned Additional Sessions Judge. If the answer is in the negative, the learned Additional Sessions Judge was in error in quashing the order of issue of process.