Final Order 2

Order Details: Order Below EX 1
Pdf Text: MHMM180084552019
Summons Cases SS/5801219/2019
Iron Triangle Ltd (Formerly known as Backbone
Enterprises Ltd) Vs. RPW Projects Pvt Ltd
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS,
58TH COURT, BANDRA, MUMBAI
ORDER BELOW EXH.01 TO BE READ WITH APPLICATION EXH.13
This is an application filed by the complainant with a prayer to
return the complaint with liberty to file before Ahamdabad Court
coupled with the prayer as to refund of Court Fees.
2. It is contended on behalf of complainant that an inquiry under
section 202 of Code of Criminal Procedure, is yet to commence against
all the accused. The complaint be returned to the complainant with
liberty to file the same before Hon’ble Court at Ahmadabad, Gujarat for
the cause to have a fair trial.
3. Accused objected the application vide reply Exh.14. According to
them the application is moved after raising quarry as to the jurisdiction
of the court to take further cognizance by the court. The order of
issuance of process was challenged by few of the accused. The
proceeding against accused No.4 is dropped by the complainant when
he moved to Hon’ble High Court. The matter was remanded back by
Hon’ble Sessions Court on Revision Application filed by accused No.2
against the order of issuance of process. Complainant has fraudulently
obtained order of issuing process against the accused showing
jurisdiction at Khar. The complaint is filed knowing well this court has
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no jurisdiction only to cause harassment to the accused living beyond
the jurisdiction of this court. Accordingly, prayed to dismiss the
complaint.
4. Heard both side’s Ld. Counsel at length.
5. Admittedly, Sessions Court has remanded the matter back for
compliance under section 202 of Code of Criminal Procedure and set
aside order of issuing process against the accused No.2.
6. The crucial question remains for determination and consideration
of this court whether the complaint can be dismissed in the situation
wherein the complaint is reverted back to the initial stage of taking
cognizance by the Magistrate on the basis of order of Revisional Court?
7. Much more is argued on behalf of the accused as to the
fraudulent act for presenting complaint before this court to harass the
accused knowing well that this court has no jurisdiction. The point
raised in the arguments by the accused can not be considered at the
preliminary stage of the proceeding. Whether the act was intentional or
fraudulent with a view to harass the accused who are residing beyond
the jurisdiction of this court is a part of further inquiry and trial, that is
after the stage of taking cognizance of the complaint. Therefore, it can
not be entertained at this juncture merely because the process issued
against the accused is set aside or complainant has dropped the
accused No.4 suppressing the stay granted by the Hon’ble High Court.
8. Second question appears for determination that whether accused
have right of hearing at the stage of taking cognizance of the complaint
by the Magistrate? Needless to state that the complaint is filed in the
year 2019. The provisions of the Code of Criminal Procedure, 1973
would apply while dealing with the complaint. In short, at a stage of
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taking cognizance of the complaint or inquiry under section 202 of
Code of Criminal Procedure, the accused have no right to be heard by
the Magistrate before taking cognizance of the complaint.
9. Yet inquiry under section 202 of Code of Criminal Procedure is
not commenced by this court. Technically the matter is still at a stage
of compliance under section 202 of Code of Criminal Procedure which
pre-requisite the essential condition for taking cognizance of the
written complaint when the accused are not residing within the
jurisdiction of the Magistrate Court. Therefore, section 201 of Code of
Criminal Procedure would come into picture. In view of section 201,
“
If the complaint is made to a Magistrate who is not competent to take
cognizance of the offence, he shall (a) if the complaint is in writing,
return it for presentation to the proper court with an endorsement to
that effect.”
10. Therefore, it is crystal clear that the accused has no locus to
proceed illegally at the pre-cognizance stage or before process is issued
under Chapter XVI of the Code of Criminal Procedure, 1973.
11. Intention of legislature is quite clear by way of section 201 of
Code of Criminal Procedure which empowers the Magistrate to return
the complaint for presentation to the competent court. Thereby the law
has given an opportunity to the complainant who preferred to chose
wrong forum. The remedy given by procedural statute can not be
taken away at the instance of objection of the accused as to the period
lapse before wrong forum and limitation.
12. So far as prayer of the complainant to refund the court fees paid
by him is concerned, the same can not be granted as there is no such
legal provision. The complainant intends to present the complaint
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before the Magistrate Court at Ahmadabad, Gujarat. The Court Fees
Laws for both States that is State of Gujarat and State of Maharashtra
are different. Therefore, the prayer of return of court fees can not be
accepted. The complainant has utilized the machinery of court in the
State of Maharashtra since 2019 till date. Therefore, also, the
complainant is not entitled to refund of court fees merely on the
ground of returning the same to produce it before competent court. At
the most remedy of return of complaint under section 201 of Code of
Criminal Procedure can be allowed with a view that there is no fault of
the complainant who knocked the doors of the court on wrong advice.
Hence, I pass following order.
ORDER
1. Application is partly allowed.
2. The complaint be return to the complainant for its
presentation to the Competent Court having jurisdiction
to try the same with endorsement to that effect subject to
filing application for condonation of delay by the
complainant before said Forum/Competent Court.
3. The Judicial Clerk of this court is directed to obtain
photocopy of the complaint, cheque, bank memo, other
relevant documents if any, important orders including
this order which shall be maintained to the record room.
4. Order dictated and pronounced in open court.
( M. P. Saraf )
Judicial Magistrate First Class,
Date : 11.02.2025 58th Court, Bandra, Mumbai.
J.O.Code: MH01362
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CERTIFICATE
I affirm that the contents of this P.D.F. file Order are same, word to word as per the
original Order.
Name of Stenographer : Mrs. Aditi Ravikiran Dalvi
Court : Judicial Magistrate(First Class), 58th Court,
Bandra, Mumbai.
Dictated in open court on : 11.02.2025.
Transcribed and Typed on : 11.02.2025.
Order printed and Signed on : 11.02.2025.
Order Uploaded on : 12.02.2025.
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