Order 1

Order Details: Order Below EX 1
Pdf Text: Summons Cases SS/5801319/2019
Order Below Exh.33
MHMM180092302019
Summons Cases SS/5801319/2019
M/s. Prachi Steels Vs. M/s. P J Enterprises
IN THE COURT OF METROPOLITAN MAGISTRATE, 58TH COURT,
BANDRA, MUMBAI
ORDER BELOW APPLICATION EXH.33
1. This application for return of complaint filed under section
210(2) of Code of Criminal Procedure, by the accused.
2. It is contended on behalf of the accused that complainant
has filed C.C.No.485/PW/2021 before the court of 62nd
Metropolitan Magistrate, Sewari, Mumbai for the offence
punishable under section 420 of Indian Penal Code against the
accused. The case filed before the Sewari court and present case
filed under section 138 of Negotiable Instrument Act being the
same arising out of one and the same transaction, needs to be
tried by one and the same court. Hence, this application.
3. The complainant objected the application vide reply Exh.35.
It is submitted on behalf of the complainant that both offences are
distinct one. The cause of action to file present complaint has
arose before present court. The complaint under section 420 of
Indian Penal Code is filed for different distinct offence of cheating
against the accused. The same has no nexus with present
complaint. Accused is prolonging matter and playing delay tactics.
The accused has not deposited the amount of interim
compensation ordered against him till today. Accordingly, prayed
for rejecting the application.
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4. Heard Advocate Siddharth Dube for the accused and
advocate Sonali Patil for the complainant at length.
5. Before going to the merits of the application, I deem fit to
quote some relevant facts. Complaint is filed before this court on
the basis of cause of action arose for the complainant to file
complaint under section 138 of Negotiable Instrument Act, after
issuing demand notice under section 138(b) of the Act. Already
interim compensation is also granted to the complainant long back
on 09.02.2023 and the same is not paid by the accused.
6. Present application is moved taking recourse of section
210(2) of Code of Criminal Procedure. The provision deals with
forwarding complaint instituted otherwise than police report for
the purpose of inquiry, investigation to the police officer under
section 173 etc. It also mandates the Magistrate to try both cases
together for the purpose of adjudication of offences of same cause
of action. Herein the case in hand, the cause of action to file
present complaint has been arose on the basis of a lawful demand
of amount of cheque which was dishonoured and returned unpaid
to the complainant.
7. Non compliance of mandatory notice under section 138(b)
by the accused has given arise to present complaint. Already
cognizance of complaint under section 190 of Code of Criminal
Procedure was taken long back. The offence of cheating under
section 420 of Indian Penal Code is a distinct offence than offence
under section 138 of Negotiable Instrument Act. The charge-sheet
is already filed before the court of Magistrate Sewari Mumbai for
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the offence punishable under section 420 of Indian Penal Code
against the accused. There is no question remains for
investigation by any police officer in regards present complaint.
The complaint filed before this court is in view of the remedy
given to the complainant by the statute after mandatory
compliance of demand notice under section 138(b) of Negotiable
Instrument Act. Therefore, both cases being for separate and
distinct offence, the same can not be tried by one and the same
Magistrate, taking recourse to section 210 (2) of Code of Criminal
Procedure.
8. The case would have been different, if complainant would
have filed private complaint claiming the offence punishable
under any provision of Indian Penal Code before Magistrate and at
the same time has lodged report to the police officer. In that case
section 210 (2) would have come into play. The proceedings
before this court are filed on the basis of special statute. Separate
remedy is granted by law to the complainant. The statute has also
given a separate forum to deal such cases by creating the Special
Courts for dealing cases under section 138 of Negotiable
Instrument Act.
9. If the complaint is returned, it will be as good as denying the
remedy to the complainant. In fact, there is no nexus in between
both proceedings. So far as aspect of multiplicity of proceeding is
concerned I do not found any legal substance in the submission of
advocate for the accused. The Court of 62nd Metropolitan
Magistrate, Sewari is not the Special Court to deal with cases
instituted under section 138 of Negotiable Instrument Act.
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10. Advocate for the accused has relied upon the Judgment of
Hon’ble Supreme Court in case of
Dilawar Singh Vs. State of
Delhi. I have gone through observation and ratio laid down by
the Apex Court in the case cited supra. The same is based on
different facts and law points. Therefore, with due respect to the
ratio laid down in the case cited supra the same will not be helpful
to the accused for submission made on his behalf.
11. The record and proceeding shows that accused is playing
delay tactics to prolong hearing of the case by taking recourse of
provision of law. This is nothing but abuse of process of law. As
per section 142(3) the case needs to be tried expeditiously so as to
conclude the trial within six months from the date of filing of the
complaint. In the facts and circumstances, I pass following order.
ORDER
1. Application is rejected with cost of Rs.3,000/- to be paid
to Legal Aid Fund.
2. Costs are condition precedent to exercise further right to
defend in the trial.
3. Order dictated and pronounced in open court.
( M. P. Saraf )
Metropolitan Magistrate,
Date : 16.04.2024 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 : Metropolitan Magistrate, 58th Court, Bandra,
Mumbai.
Dictated in open court on : 16.04.2024.
Transcribed and Typed on : 16.04.2024.
Order printed and Signed on : 16.04.2024.
Order Uploaded on : 16.04.2024.
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