GANESH NARAYAN DANGRE Vs. EKNATH HARI JHAMPE

JUDGEMENT

(1.) THIS revision application is directed against an order dated 23rd December 1976 passed by the Judicial Magistrate, First Class, Hinganghat in Criminal Case No. 566 of 1975, who dismissed the complaint filed by the applicant's wife, deceased Mirabai, and discharged the opponents Nos. 1 to 3 of the offences under sections 423 and 465 of the Indian Penal Code. This discharge purports to be under Section 249 of the Code of Criminal Procedure (new ).

(2.) THE case of deceased Mirabai, the original complainant, against the opponents Nos. 1 to 3 was that opponent No. 1 Eknath was her tenant, that he had fallen into arrears of rent and, therefore, she served him with a notice through her advocate on 19th November 1974 to pay the arrears of rent and vacate the house. Opponent No. 1, though he received a notice, did not comply with it. Instead he started saying that he had purchased the house from the complainant. When the complainant heard about It she became alarmed and made enquiries through her husband who obtained a photo copy of the document purported to be a sale-deed alleged to have been executed by her in favour of the opponent No. 1 sometime in 1972. This, according to the complainant, gave her a shock because she had not executed any such document in favour of opponent No. 1. She, therefore, reported the matter both to the police and the District Registrar. However, as the matter was getting delayed at their hands she filed a complaint in the Court. According to the complainant, she never sold the said house to opponent No. 1 and never put her thumb impression on any document before the Sub Registrar, Hinganghat, The case of the complainant is that opponent No. 1 forged and fraudulently got the document registered causing thereby a huge wrongful loss to the complainant and wrongful gain to himself. The opponents Nos. 2 and 3, according to the complainant, were the witnesses to the said document and hence they have abetted the offences and are liable to be punished for abetment of the offences under sections 423 and 465 of the Indian Penal Code. On these allegations the complaint was filed by the complainant in the Court of the learned Judicial Magistrate, First Class, Hinganghat.

(3.) IT may be noted that under the provisions of the amended Criminal Procedure Code, 1973, hereinafter called the new Code, both the offences being punishable with imprisonment for two years can be tried with the procedure prescribed for summons cases. However, it appears that the learned Magistrate decided to try the case as a warrant case. This is clear from the fact that he fixed the dates of hearing for recording evidence before the charge. There is no question of framing a charge in a summons case and, therefore, it appears that the Magistrate decided to try the case as a warrant case. Section 259 of the new Code, permits the Magistrate to try offences in accordance with the procedure prescribed for the trial of warrant cases though the offences could be tried with procedure prescribed for a summons case. I shall revert to the provisions of this section a little later. For the present it is sufficient to state that the Magistrate decided to try the case as a warrant case and when the present applicant, the husband of the original complainant Mirabai, filed a pursis before the learned Magistrate on 23-12-1976 informing the learned Magistrate that the complainant had died on 16-12-1976, he passed the following order: Ganesh Dangre, the husband of the complainant is present. He filed a pursis that the complainant Mirabai died on 16-12 76. Relying upon Ms pursis, as the complainant is absent due to her death, the complaint is dismissed in default and the accused are discharged under Section 249 Cr. P. C. That the accused were discharged under Section 249 of the Code of Criminal Procedure also shows that the Magistrate proceeded to try the case as a warrant case,