SALIMBHAI Vs. AMIRUDDIN HASAN NURANI MALAK

JUDGEMENT

(1.) Complainant Salimbhai filed a complaint before learned Judicial Magistrate First Class, Nagpur alleging offence under Section 406 of the Indian Penal Code. On 1.7.2003, learned Judicial Magistrate First Class, passed an order after hearing the complainant and recording verification and issuing process against the accused for offence under Section 406 of the Indian Penal Code. The said order was challenged before learned Sessions Judge, Nagpur in Criminal Revision Application No.1063/2005. On 18.11.2005, learned Sessions Judge decided the said revision. While deciding the revision, learned Sessions Judge recorded some findings. The Sessions Judge came to conclusion that the complainant has not prima facie established his contention in respect of amount of misappropriation of property and, therefore, order passed by learned Judicial Magistrate First Class was quashed and set aside and directed learned Judicial Magistrate First Class to proceed afresh in accordance with law. Learned Sessions Judge also directed that learned Judicial Magistrate First Class shall direct the complainant to adduce evidence and, thereafter, proceed with the matter in accordance with law. Applicant/accused in Criminal Application No.785/2006 challenged clause No.3 of the operative part of the same judgment and order in Criminal Revision Application No.1063/2005. The said clause No.3 of the operative part of the judgment and order passed by learned Sessions Judge is reproduced herein below:

(2.) Heard learned counsel Shri A.A.Naik for the applicants in Criminal Revision No.288/2005. He submitted that learned Sessions Judge ought not to have recorded findings in respect of property of misappropriation. Learned Sessions Judge only should have taken a decision as to whether the order passed by learned Judicial Magistrate First Class is legal or not. He submitted that learned Judicial Magistrate First Class came to conclusion that there is prima facie case to issue process for the offence under Section 406 of the Indian Penal Code and, therefore, process was issued. He submitted that the order passed by learned Judicial Magistrate First Class is wrongly quashed and set aside by learned Sessions Judge and, therefore, he prayed to allow the revision.

(3.) Learned senior counsel Shri Anil S.Mardikar for applicant in Criminal Application No.785/2006 pointed out that once stage of issuing process has gone, then the Court cannot revert back for recording of evidence and accepting documents. In support of his submission, learned senior counsel pointed out a decision of this Court in the case of Jayant s/o Vishwanath Uttarwar vs. Shree Sai Baba Sewa Mandal and anr decided on 7.4.1982. Learned senior counsel pointed out deed of relinquishment and submitted that the accused has not committed any misappropriation. He supported the findings given by learned Sessions Judge except clause No.3 of the operative order. It is submitted by learned senior counsel that learned Sessions Judge should not have directed the Court below to direct the complainant to adduce evidence. He submitted that there is no prima facie case against the accused to issue process for offence under Section 406 of the Indian Penal Code. Therefore, learned senior counsel prayed to quash and set aside clause No.3 of the operative part of the judgment and order in Criminal Revision Application No.1063/2005.