MAHENDRA JAMNADAS KARA Vs. MUKESH BABURAO WAGHMARE

JUDGEMENT

(1.) Rule, with the consent of the learned counsel for the parties made returnable forthwith and heard. Heard the learned counsel for the parties. The learned counsel appearing for the Applicant invites attention of this Court to the averments made in the complaint as also to the verification statement of the complainant and other documents placed on record, and submits that the learned Magistrate has rightly issued process keeping in view the averments of the complaint as also the verification statement of the complainant. It is submitted that without assigning any reasons, why the order of issuance of process is not correct, the Sessions court by a cryptic order set aside the order of issuance of process passed by the learned Magistrate. The learned counsel for the Applicant relying upon the judgment of the Apex Court in the case of Kamal Shivaji Pokarnekar v/s. State of Maharashtra and ors. 2019(2) Bom. C.R.(Cri) 626 submits that the Apex Court in the facts of that case ruled that, if ingredients of offence alleged against accused are prima facie made out in complaint, criminal proceeding shall not be interdicted. He submits that in the present case the averments in the complaint and the verification statement of the complainant clearly disclose the ingredients of alleged offences and therefore the learned Magistrate has rightly issued the process, and therefore, there was no reason for the Sessions court to cause interference in the well reasoned order passed by the learned Magistrate.

(2.) On the other hand, the learned counsel appearing for the contesting Respondent invites attention of this Court to the averments made in the complaint and submits that, none of the averments would disclose the alleged offences. He submits that there are two reports submitted by the police under Section 202 of the Criminal Procedure Code taking a view that the dispute is of civil nature, and therefore, the Sessions Court has rightly caused interference in the order of issuance of process passed by the learned Magistrate. He submits that there was an agreement between the parties, and in case of breach of terms of the said agreement, the complainant is at liberty to avail of a civil remedy. It is submitted that the Applicant has already filed a civil suit for the breach of contract. He invites attention of this Court to the verification statement of the complaint and submits that, even if the said statement is read in its entirety, no offence as alleged against the accused is disclosed. He also invites attention of this Court to the judgment of the Sessions court and submits that the Sessions Court, has assigned sufficient reasons and thereafter set aside the order of issuance of process passed by the learned Magistrate. It is submitted that if there is an agreement and in case of breach of the said agreement, it is always open for the party to avail of a civil remedy. The learned counsel for the contesting Respondent invites attention of this Court to the judgment of the Apex Court in the case of Vinod Natesan v/s. State of Kerala and ors 2018 0 Supreme (SC) 1244. and submits that in case of breach of agreement, proper remedy is to file civil proceeding in the civil court as held by the Apex Court in the facts of the said case.

(3.) Heard the learned counsel for the parties at length. With their able assistance perused the averments made in the complaint, the verification. statement of the complainant, the annexures of the Criminal Application as also the reasons assigned by the court below. From reading of the averments in the complaint in paragraphs 5, 7, 14, 15, 17, 19, 20, 24, 28, 29 and 36, it is clear that prima facie ingredients of the alleged offences get attracted, and consequently alleged offences are disclosed. The Sessions Court in the impugned judgment and order did not advert to the averments made in the complaint, and without adverting to the averments made in the complaint as also the verification statement of the complainant, proceeded to pass the impugned order thereby quashing and setting aside the order of issuance of process passed by the learned Magistrate.