JUDGMENT
Pratibha Upasanl, J.
1. This Criminal Writ Petition is filed by the original complainant M/s. Sonalkar Chemicals, being aggrieved by the order dated 10th March, 1995 passed by the Additional Sessions Judge, Pune in Criminal Revision Application No- 606 of 1994. By the impugned Judgment and Order, the learned Additional Sessions Judge, Pune. allowed the said Criminal Revision Application of the Revision Applicants/original accused, and quashed the order of issuance of process passed by the Judicial Magistrate. First Class, Pune in Criminal Case No. 215 of 1994 on 16th June. 1995.
2. Few facts which are required to be stated are as follows :-The complainant filed complaint dated 17th May, 1994 against Respondent Nos. 1 to 5 for offence punishable, under Section 420 of the Indian Penal Code. The complainant is a proprietary concern and used to supply silver to accused No. 1 Company. Accused Nos. 2, 3 and 4 are some ofthe Directors of accused No. 1. The complainant used toconvert silver into silver nitrate and for that purpose, the accused agreed to pay to him labour charges separately. This practice was going on for a very long time, and it was specifically agreed between the parties that the rate would be quoted by the complainant. It was also agreed between the parties, as per the case of the complainant, that the accused would make payment against delivery of silver. This was because the complainant had to obtain loan from the Bank for the purpose of purchasing the silver from the open market and had to pay interest to the Bank at the rate of 21% for the said loan. However, as the complainant’s story goes, the accused used to make delay in paying the bills. In para 6 of the complaint on Page No. 15 of the paper Book, the complainant has stated that in one such transaction, representation was made to the complainant by the accused persons that his payment would be made and thus, induced him to supply the next delivery of the silver worth Rs. 2,12,535.56 paise. Some cheques were given to the complainant, which were dishonoured, as the accused gave stop payment instructions. The grievance of the complainant therefore, is that right from the beginning, the accused had dishonest intention of not making the payment for the earlier amount due and insplte of that, they further induced the complainant to supply silver, so far as that particular Bill No. 14 is concerned on the pretext that the payment of the earlier Bill was cleared. Hence, the complaint.
3. I have heard Ms. Rutuja Ambekar for the Petitioner and Mr. Salvl, the learned A.P.P. for Respondent No. 6/State. I have also perused the proceedings.
4. It appears that the learned Judicial Magistrate, First Class, Pune, issued process against the accused, which was challenged by the accused/ Respondent Nos. 1 to 5 in the Revisional Court and the Revisional Court allowed the said Revision and quashed the said order of issuance of process.
5. Ms. Ambekar for Petitioner submitted that the Additional Sessions Judge committed error in quashing the process issued by the Magistrate, as he had no jurisdiction to entertain a Revision Application in view of Section 397 of the Code of Criminal Procedure, 1973. She submitted that Issuance of process is a Interlocutory order. She relied upon order of this Court in Uttam Krishnaji Levarkar v. State of Maharashtra and Anr., which says that order issuing process, on exparte consideration ofthe complaint and material under Section 204 is an interlocutory order and is not subject to revision under Section 397 ofthe Code of Criminal Procedure, 1973. She therefore prays that the order of the learned Additional Sessions Judge, be set aside.
6. Mr. Salvi, the learned A.P.P., concedes that the Additional Sessions Judge, exercised jurisdiction erroneously in quashing the process issued by the Judicial Magistrate, First Class.
7. After perusing the impugned Judgment and the provisions of Sections 397 and 482 of the Code of Criminal Procedure, 1973. It is obvious that the learned Additional Sessions Judge exercised jurisdiction which he did not have. The accused, ought to have approached the High Court under Section 482 of the Code of Criminal Procedure, 1973 and under Article 227 of the Constitution of India for getting the order of process quashed, if he so desired. Approaching the Court of the Additional Sessions Judge, in its revisional jurisdiction, making the grievance against an interlocutory order, and the learned Additional Sessions Judge exercising power of quashing the same, as if he was exercising power under Section 482 of the Code of Criminal Procedure, 1973, which High Courts alone have got, was obviously erroneous. The case relied upon by Ms. Ambekar for Petitioner, namely, 1995 (1) Mh.L.J. 95 (supra), is applicable only to the extent that it says that issuing a process is an interlocutory order. However, in the said case, the process was issued under Section 500 of the Indian Penal Code, for which, the punishment provided under the Indian Penal Code is for a term, which may extend to two years or with fine or with both, making it a summons-triable case. Therefore, in that case, the learned Judge observed that recourse could have been taken to the Judgment of the Supreme Court in K. M. Mathew v. State of Kerala, and therefore, it was open to the accused person, against whom process was issued to go back to the Magistrate and submit to the said Court that the complaint did not disclose any prima facie case. In summons-triable case, the accused person may always appear before the Magistrate in response to the summons and urge before the concerned Magistrate that there was no sufficient ground, and if such an objection is taken by the accused in response to the process issued against him, it was always open i’or the Magistrate to consider the said matter and if satisfied, to recall the order of issuing of process.
8. However, in the present case at hand, the complaint discloses offence punishable under Section 420 of the Indian Penal Code which prescribes the punishment, which may extend to seven years and also fine, making it a warrant-triable case. In a warrant-triable case, Mathew’s case (supra) may not have any application, therefore, the only option open to the accused was to approach the High Court under Section 482 of the Code of Criminal Procedure, 1973 and Article 227 of the Constitution of India, for getting the order of Issuance of process quashed.
9. Thus, considering this legal position, entertaining by the Additional Sessions Judge, in Its revisional jurisdiction, an interlocutory order under Section 397 of the Code of Criminal Procedure, 1973. and to quash the same, was erroneous. By doing so, he exercised jurisdiction which he did not have. The said order, therefore, will have to be set aside. Hence, the following order :
Criminal Writ Petition No. 715 of 1995 is allowed in terms of prayer Clause (b).
10. The order dated 10th March, 1995 passed by Additional Sessions Judge, Pune in Revision Application No. 606 of 1994, is hereby quashed and set aside, and the order dated 16th June, 1994 passed by the Judicial Magistrate, First Class, Pune in Criminal Case No. 215 of 1994 issuing process, against the Respondent/accused under Section 420 of the Indian Penal Code is hereby restored.
11. The Judicial Magistrate, First Class, Pune to proceed with the case in accordance with law.
12. Writ to go down immediately.