{"id":152485,"date":"2009-07-18T00:00:00","date_gmt":"2009-07-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shri-gajanan-narayan-joshi-vs-haridas-bhikulal-jobanputra-on-18-july-2009-2"},"modified":"2016-08-21T10:12:01","modified_gmt":"2016-08-21T04:42:01","slug":"shri-gajanan-narayan-joshi-vs-haridas-bhikulal-jobanputra-on-18-july-2009-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shri-gajanan-narayan-joshi-vs-haridas-bhikulal-jobanputra-on-18-july-2009-2","title":{"rendered":"Shri Gajanan Narayan Joshi vs Haridas Bhikulal Jobanputra on 18 July, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Shri Gajanan Narayan Joshi vs Haridas Bhikulal Jobanputra on 18 July, 2009<\/div>\n
Bench: P. D. Kode<\/div>\n
                                              1\n\n\n\n\n                                                                                  \n          IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                    NAGPUR BENCH : NAGPUR.\n\n\n\n\n                                                          \n                     CRIMINAL APPLICATION NO.530\/2009\n                                           WITH\n\n\n\n\n                                                         \n                     CRIMINAL APPLICATION NO.531\/2009\n                                           WITH\n\n\n\n\n                                                    \n                     CRIMINAL APPLICATION NO.532\/2009\n                              \n    (1)     Criminal Application No.530\/2009\n                             \n    Shri Gajanan Narayan Joshi,\n    Aged about 53 years,\n    Occupation - Business,\n           \n\n\n    R\/o. Joshi Medical Stores, Akola\n    Tahsil and District - Akola.                     ..      Petitioner\n        \n\n\n\n                         .. Versus ..\n\n\n\n\n\n    1.    Haridas Bhikulal Jobanputra,\n          Aged - Adult, Occupation - Business,\n          R\/o. Amrutwadi, Akola.\n\n\n\n\n\n    2.    State of Maharashtra,\n          through PSO, Akot File,\n          Akola.                                     ..      Respondents\n\n                                        ..........\n\n\n\n\n                                                          ::: Downloaded on - 09\/06\/2013 14:48:14 :::\n                                               2\n\n    (2)   Criminal Application No.531\/2009\n\n    Shri Gajanan Narayan Joshi,\n\n\n\n\n                                                                                  \n    Aged about 53 years,\n    Occupation - Business,\n\n\n\n\n                                                          \n    R\/o. Joshi Medical Stores, Akola\n    Tahsil and District - Akola.                     ..      Petitioner\n\n                         .. Versus ..\n\n\n\n\n                                                         \n    1.    Manish Kumar Rasiklal Mehata,\n          Aged - Adult, Occupation - Business,\n          R\/o. Paras Novelty & Gift Center,\n          Tajnapeth, Akola,\n\n\n\n\n                                                    \n          Tahsil and District - Akola.\n\n\n    2.    State of Maharashtra,\n                              \n          through DGP Akola.                         ..      Respondents\n                             \n                                        ..........\n            \n\n    (3)   Criminal Application No.532\/2009\n         \n\n\n\n    Shri Gajanan Narayan Joshi,\n    Aged about 53 years,\n    Occupation - Business,\n\n\n\n\n\n    R\/o. Joshi Medical Stores, Akola\n    Tahsil and District - Akola.                     ..      Petitioner\n\n                         .. Versus ..\n\n\n\n\n\n    1.    Piyush R. Shaha,\n          Aged : Adult, Occupation - Business,\n          R\/o. Patel Medical Stores,\n          Near Ravi Scooter, \n          Collector Office Road,\n          Akola.\n\n\n\n\n                                                          ::: Downloaded on - 09\/06\/2013 14:48:14 :::\n                                            3\n\n    2.    State of Maharashtra,\n          through DGP Akola.                      ..          Respondents\n\n\n\n\n                                                                                   \n                           ..........\n\n\n\n\n                                                           \n    Mr. A.H. Lohiya, Advocate h\/f Mr. S.P. Deshpande, Advocate for petitioner,\n    Mr. S.S. Joshi, Advocate for respondent no.1,\n    None for respondent no.1 in CA No.531\/2009,\n\n\n\n\n                                                          \n    Mr. C.N. Adgokar, APP for respondent no.2.\n                           ..........\n\n\n\n\n                                               \n                                        CORAM :  P.D. KODE, J.\n<\/pre>\n
                                   ig   DATED  :  JULY 18, 2009.\n<\/p>\n
    ORAL JUDGMENT :\n<\/p>\n
    1.         Heard.\n<\/p>\n
    2.         Rule.  Returnable forthwith.  Heard finally by consent of parties.\n<\/p>\n
    3.         By these applications preferred under Section 482 of the Code of <\/p>\n
    Criminal Procedure, petitioner\/accused facing prosecution for commission <\/p>\n
    of offence under Section 138 of Negotiable Instruments Act in Summary <\/p>\n
    Case   No.4475\/2006,   4514\/2006   and   3927\/2006   pending     in   Court   of <\/p>\n
    learned Chief Judicial Magistrate, Akola instituted upon the complaint filed <\/p>\n
    by   respective respondent no.1 in each of these respective   petition, had <\/p>\n
    thrown a challenge to order dated 16.10.2008 passed by learned Additional <\/p>\n
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\n                                                  4<\/span><\/p>\n
    Sessions Judge, Akola rejecting each of applications in revision preferred by <\/p>\n
    said petitioner against common order dated 24.7.2008 passed by trial Court <\/p>\n
    for   the   said   summary   criminal   cases   fixing   each   of   said   case   for <\/p>\n
    consideration   on   merits   and   for   judgment.     Needless   to   add   that   the <\/p>\n
    petitioners     have   prayed   for     quashing   and   setting   aside   order   dated <\/p>\n
    16.10.2008   passed   by   the   learned   Additional   Sessions   Judge   and   have <\/p>\n
    further   prayed   for   directing   trial   Court   to   proceed     with   the   trial   in <\/p>\n
    accordance   with   the   procedure   prescribed   under   Code   of   Criminal <\/p>\n
    Procedure.\n<\/p>\n
    4.           The facts  bereft of unnecessary  details  and restricted to limited <\/p>\n
    controversy  involved as disclosed  from applications\/the orders impugned <\/p>\n
    are as under:\n<\/p>\n
                 During the pendency of    said cases  at a  particular stage after <\/p>\n
    recording the plea of the applicant i.e. :-\n<\/p>\n
    (i)      in SCC No. 4457 of 2006 after respondent No.1\/complainant   has <\/p>\n
    led   evidence  on affidavit 19.7.2006 and petitioner    had failed to cross-\n<\/p>\n
    examine him after seeking number of adjournments and   trial Court   had <\/p>\n
    passed order of no cross-examination on 23.2.2008 and was adjourned for <\/p>\n
    recording statement of petitioner on 22.4.2008;\n<\/p>\n
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\n                                                  5<\/span><\/p>\n
    (ii)   in   SCC   No.   4514\/2006     after   respondent\/complainant   has   led <\/p>\n
    evidence   on   affidavit     on   23.2.2007   and   petitioner   had   failed   to   cross-\n<\/p>\n
    examine him after seeking number of adjournments and   trial Court   had <\/p>\n
    passed  order of no cross-examination  on 22.2.2008 and was adjourned for <\/p>\n
    recording statement of petitioner; and <\/p>\n
    (iii)   in   SCC   No.   3927\/2006   after   respondent\/complainant   has   led   his <\/p>\n
    evidence   on   affidavit   and   the   petitioner   had   cross-examined   him   and <\/p>\n
    petitioner     was   examined   by   trial   Court   under   Section   313   of   Code   of <\/p>\n
    Criminal Procedure  and petitioner\/accused in spite of taking adjournment <\/p>\n
    had  failed  to  lead    evidence  in  his  defence   and  the  case  was   closed   on <\/p>\n
    29.3.2008   and   the   same   was   adjourned   from   time   to   time   for   final <\/p>\n
    argument;\n<\/p>\n
    petitioner\/accused has respectively filed a pursis  respectively at Exh.53, 48 <\/p>\n
    and 44 inter alia stating all matters being amicably settled\/compounded in <\/p>\n
    between   himself   and   complainant   and   petitioner\/accused   has   agreed   for <\/p>\n
    paying   the   cheque   amount   to   complainant   and   he   would   be   paying   the <\/p>\n
    same before next date fixed in the matter.\n<\/p>\n
    5.           Learned counsel for respondent no.1 has urged  that after filing <\/p>\n
    of said  pursis, trial court observing that same was not bearing the signature <\/p>\n
    of learned Advocate for petitioner\/accused had ordered complainant to look <\/p>\n
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\n                                                  6<\/span><\/p>\n
    in the matter.   It is also urged that learned counsel for complainant had <\/p>\n
    noted matters stated in said pursis.   It is further urged that thereafter the <\/p>\n
    petitioner\/accused having not paid the amount as stated in said pursis and <\/p>\n
    pursis were filed on behalf of respondent no.1\/complainant amongst other <\/p>\n
    stating that in view of petitioner\/accused   being ready to pay the cheque <\/p>\n
    amount in respective case and having  filed  pursis for granting him time;\n<\/p>\n
    petitioner\/accused has no right to conduct\/contest matter on merits and <\/p>\n
    hence all the said matters should be posted for further proceeding or for <\/p>\n
    making the justice and accordingly the common order dated 24.7.2008 was <\/p>\n
    passed by the trial Court upon complaint Exh.1 in each of the said cases.\n<\/p>\n
    6.           Now   reverting   to   common   order   impugned   in   the   revision <\/p>\n
    application the same reveals that after considering all the said facts and <\/p>\n
    particularly after taking into consideration the pursis given by the accused, <\/p>\n
    the   trial  court  had  posted the   matter  for   considering   the  merits   and  for <\/p>\n
    judgment.\n<\/p>\n
    7.            It is the grievance of the learned counsel for the petitioner that <\/p>\n
    the   order   passed   by     trial   court     denotes   said   cases   being   posted   for <\/p>\n
    judgment.   It is his contention that the offences being not compounded, <\/p>\n
    the trial Court   was bound to proceed with said cases in accordance with <\/p>\n
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\n                                                 7<\/span><\/p>\n
    the law i.e. reviving the proceeding from the stage at which the same were <\/p>\n
    stopped due presentation of a pursis by the accused\/petitioner regarding <\/p>\n
    the settlement which unfortunately had not taken place.  Hence accordingly <\/p>\n
    trial   Court     was   bound   to   fix   SCC   Nos.   4457\/2006   and   4514\/2006   for <\/p>\n
    recording the statement of petitioner\/accused while SCC No. 3927\/2006 for <\/p>\n
    the arguments.  It is his submission that trial Court was bound to proceed <\/p>\n
    with   said   cases     thereafter     as   per   the   procedure   prescribed   for   such <\/p>\n
    summary cases.  The order passed by the trial Court fixing all the cases for <\/p>\n
    the conclusions on merits and a judgment is wholly illegal, unwarranted <\/p>\n
    and contrary to the procedure prescribed under the law.  Similarly the order <\/p>\n
    passed by the Additional Sessions Judge rejecting applications in revision <\/p>\n
    preferred against the said order is also illegal as same impliedly approves <\/p>\n
    the procedure by law being not followed by trial Court.  It is thus crux of <\/p>\n
    submission that both said orders are liable to be quashed and set aside.\n<\/p>\n
    8.                       Learned   counsel   for   respondent   no.1   has   countered <\/p>\n
    said submissions by urging that no unwarranted inferences of the matter <\/p>\n
    being fixed for arguments and judgment and\/or only for a judgment   as <\/p>\n
    canvassed   by   learned   counsel   for   the   petitioner   emerges   from   the   order <\/p>\n
    passed by the trial Court.     He has further urged that   respondent no.1, <\/p>\n
    at no point of time,   had requested trial Court   for fixing the matter for <\/p>\n
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\n                                                 8<\/span><\/p>\n
    judgment   and   had   merely   requested   for   posting   cases     for   further <\/p>\n
    proceeding, as admittedly there was no settlement\/compounding of matter <\/p>\n
    and the cases were being delayed on such count of arriving of settlement.\n<\/p>\n
    It is his submission of same being apparent from the fact of  respondent no.\n<\/p>\n
    1  being required to file the pursis.  It is thus his submission that since the <\/p>\n
    conclusion as canvassed on behalf of petitioner is not emerging from the <\/p>\n
    order passed by the trial Court, neither any fault can be found with the <\/p>\n
    order passed by the trial Court nor with order confirming the same passed <\/p>\n
    by Court of appeal which exercising powers in revision.   Thus the challenge <\/p>\n
    thrown to the said order being devoid of merits , applications deserve to be <\/p>\n
    dismissed.\n<\/p>\n
    9.           Now before embarking upon considering rival submissions  it is <\/p>\n
    necessary to say that  respondent no.1 having not filed any reply to present <\/p>\n
    petition nor placed on record pursis filed by respondent no.1 for supporting <\/p>\n
    submissions canvassed about the same or about   order passed by the trial <\/p>\n
    Court  upon   the   pursis   presented  on   behalf   of   petitioner;   by  filing     any <\/p>\n
    document for supporting the same;  all the same will  deserve  to be ignored <\/p>\n
    due to  material for appreciating same being not placed before the  Court.\n<\/p>\n
    Needless   to   add   such   a   practice   of   making   the   submissions   without <\/p>\n
    producing the material for supporting the same deserves to be deprecated.\n<\/p>\n
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\n                                                   9<\/span><\/p>\n
    10.          Now   considering   the   controversy   involved   in   the   matter   i.e. <\/p>\n
    compounding of offences     and   the appellate revisional Court in the said <\/p>\n
    context having rightly observed   that in event of compromise having not <\/p>\n
    occurred, the trial Court has no reason to pass the order dated  24.7.2008 <\/p>\n
    still while rejecting applications in revision and directing the trial Court to <\/p>\n
    proceed   in   the   matter   as   per   the   provisions   of   law   having   not   clarified <\/p>\n
    certain aspects connected with such a direction given and having regard to <\/p>\n
    delay caused in the matter in view of the confusion arisen due to said order <\/p>\n
    passed   and  impugned  in  present  applications   had    necessitated   to  make <\/p>\n
    some dilation about the relevant aspect.\n<\/p>\n
    11.            The   subject  relating   to   compounding   of   an   offence   has   been <\/p>\n
    found   dealt   in     Chapter   XXIV     of   the   Code   of   Criminal   Procedure   and <\/p>\n
    particularly in Section 320 of the same while  the procedure pertaining to <\/p>\n
    summary trial has been found prescribed by Section 260 to 265 of the Code <\/p>\n
    of Criminal Procedure.\n<\/p>\n
    12.            The   cursory   glance   at   Section   320   (1)   and   (2)   makes   it <\/p>\n
    abundantly clear that   the offences mentioned in table given in said   sub-\n<\/p>\n
    sections    being  made  compoundable   by the persons mentioned in third <\/p>\n
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\n                                                 10<\/span><\/p>\n
    column of said table.  Now  glance to said third column clearly reveals that <\/p>\n
    permission   of   compounding   from   Court       is   necessary     for   the   offences <\/p>\n
    mentioned in a table given for sub-section (2) while no such a permission is <\/p>\n
    necessary   for   offences   mentioned   in   a   table   given   in   sub-section   (1).\n<\/p>\n
    The plain reading of the said provision in terms reveal that thus power to <\/p>\n
    compound has been conferred  only upon the person mentioned in the said <\/p>\n
    third   column   who   are   generally   either     complainant\/aggrieved   and\/or <\/p>\n
    affected person.    The power for compounding the offences mentioned in <\/p>\n
    the   said   table   is   also   extended   for   compounding   of   abetment   of   such <\/p>\n
    offences by virtue of sub-section (3).   Such a power for such offences has <\/p>\n
    been   found   further   extended   for   person   under   aged   18   years   or   for   an <\/p>\n
    idiots\/ lunatics  upon a person competent to contract on their behalf while <\/p>\n
    the   same   has   been   found   extended   upon   the   legal   representative   of <\/p>\n
    deceased   person   for   a   deceased   who   would   have   been   competent   to <\/p>\n
    compound by virtue of provisions of  sub-sections (1) and (2).  The  limits <\/p>\n
    upon the powers to accord the permission as required under sub-section (2) <\/p>\n
    are found  extended and\/or restricted by virtue of provisions of sub-section <\/p>\n
    (5) and (6).  The fetters on compounding of even such offences are found <\/p>\n
    imposed on count of previous conviction by virtue of sub-section (7).  The <\/p>\n
    provisions of sub-section (9) makes it abundantly clearly that no   offence <\/p>\n
    other   than   mentioned   in   Section   320   i.e.   other   than   mentioned     in   the <\/p>\n
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\n                                                   11<\/span><\/p>\n
    tables given under sub-section (1) and (2) and\/or permitted to be extended <\/p>\n
    by virtue of provisions of sub-sections (3)and (4), can be compounded.\n<\/p>\n
    13.          Thus   carefully   considering   scheme   for   compounding   provided <\/p>\n
    under Code of Criminal Procedure by provisions of Section 320 makes it <\/p>\n
    clear   that   power   to   compound   even   the   offences   mentioned   in   the   said <\/p>\n
    Section 320 is not at all conferred upon the accused in any manner or in <\/p>\n
    other words the information about offence being compounded even for the <\/p>\n
    said offences  could be given only by the persons mentioned in third column <\/p>\n
    of   the   said   tables   given   under     sub-section   (1)   and   (2)   of   Section   320.\n<\/p>\n
    Needless to add that the same would enable the concerned Court to pass <\/p>\n
    appropriate   order   as   required   under   Section   320   (8)   of   the   Code   of <\/p>\n
    Criminal   Procedure.     Having   regard   to   the   same   any   information   about <\/p>\n
    compounding of offences given by any other person other than the person <\/p>\n
    permitted to compound would be inconsequential.\n<\/p>\n
    14.          Now considering the aforesaid aspect in light of  the provisions <\/p>\n
    of Section 147 of the Negotiable Instruments Act under which the offences <\/p>\n
    punishable under the said Act is made compoundable, it can be safely said <\/p>\n
    that   power   to   compound   such   offences   would   be   deemed   to   have   been <\/p>\n
    extended only upon the complainant\/affected person etc. but not upon the <\/p>\n
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\n                                                 12<\/span><\/p>\n
    accused.   Such a conclusion is inevitable as non-abstante part of Section <\/p>\n
    147 of Negotiable Instruments Act is apparently related with the aspect of <\/p>\n
    the offences under other Act other than IPC being not made compoundable <\/p>\n
    by virtue of provisions of Section 320.  The same is obvious having regard <\/p>\n
    to the purpose for which power of compounding offences has been found <\/p>\n
    confined with the person mentioned in  third column of tables mentioned in <\/p>\n
    sub-sections  (1) and  (2)  of Section 320.  The same appears accordingly <\/p>\n
    after   taking   into   consideration   purpose   for   which   such   a   provisions   are <\/p>\n
    made and the practical aspect connected with same.\n<\/p>\n
    15.          It is indeed true that compounding of an offence permitted to be <\/p>\n
    compounded   in   most   of   the   cases   would   involve   arrival   of   bilateral <\/p>\n
    agreement as compounding itself involve settlement of differences between <\/p>\n
    affected person and offending an accused , still the whole object behind <\/p>\n
    composition   or   permitting   to   compound   being   redressal   of   grievance   of <\/p>\n
    affected person, the legislature in its wisdom had conferred power to report <\/p>\n
    of   compounding of an offence   upon the affected person\/ or the persons <\/p>\n
    standing in the shoes for them.\n<\/p>\n
    16.          In the  matter  of  compounding  of  an  offences  as  permitted by <\/p>\n
    Section 320 of the Code of Criminal Procedure it will not be out of place to <\/p>\n
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\n                                                   13<\/span><\/p>\n
    point out that though the same appears to be akin with compromising of <\/p>\n
    the civil matters as made permissible by provisions of Order 23 Rule 3 of <\/p>\n
    the Code of Civil Procedure, still there exists a great deal of a difference in <\/p>\n
    between them.  Under the latter provision, the Court is required to examine <\/p>\n
    the legality of the settlement or compromise arrived;  while same is wholly <\/p>\n
    unnecessary   under the former provision.   In event of compounding of an <\/p>\n
    offence being reported to a criminal court by a person authorized to inform <\/p>\n
    the same, it is wholly unnecessary for the Court to examine the terms of the <\/p>\n
    settlement   and\/or   to   determine   whether   the   same   are   complied   or <\/p>\n
    otherwise.   The Criminal Court is only required to take into consideration <\/p>\n
    the   fact   of   offence   being   compounded   being   reported   to   it   by   a   person <\/p>\n
    authorised to do so and   the said person having compounded the offence <\/p>\n
    with   a   will   or   without   threat,   coercion,   duress   or   undue   influence.\n<\/p>\n
    Needless to add that in event of such things being satisfactorily established <\/p>\n
    would follow the order under Section 320 (8)  of Cr.P.C.\n<\/p>\n
    17.          Now even taking a practical view of accused having reported of <\/p>\n
    arrival of   compounding of  offences and occurrence of such a thing could <\/p>\n
    be   in   most   of   the   cases   due   to     arriving   of   bilateral   agreement     would <\/p>\n
    require   the   Court   to   make   the   necessary   inquiry   by   questioning     the <\/p>\n
    complainant   ,   still       the   same   should   not   be   permitted   to   be   extended <\/p>\n
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\n                                                      14<\/span><\/p>\n
    unduly for a longer period  as found to have been extended in the instant <\/p>\n
    case and much a less on the count of the accused satisfying the terms of <\/p>\n
    settlement  of making the payment within one month.  Needless to add that <\/p>\n
    in   event   of   compounding   of   an   offences   being   not   reported   by   proper <\/p>\n
    person and\/or   after completing expeditiously inquiry about the relevant <\/p>\n
    aspect and in event of Court coming to conclusion of compounding of an <\/p>\n
    offences having not taken place , Court would be bound to fix the matter for <\/p>\n
    further proceeding for completion of   summary trial alike other criminal <\/p>\n
    trials required to be completed as expeditiously  as possible.\n<\/p>\n
    18.           Now  after considering in proper perspective  the matters stated <\/p>\n
    in the pursis given by the petitioner and even after taking most charitable <\/p>\n
    view of the same showing his admission\/willingness  to pay cheque amount <\/p>\n
    in   view   of   the   settlement   being   arrived,   still   it   is   difficult   to   accept   the <\/p>\n
    submission of learned counsel of the same amounting to admission of guilt <\/p>\n
    the   petitioner\/accused   has   no   right   to   contest   the   said   cases   on   merits <\/p>\n
    after filing of such a pursis.  The same is obvious as  construing the same as <\/p>\n
    an admission of guilt, the same should have disclosed a clear cut admission <\/p>\n
    of commission of offence under Section 138 of the Negotiable Instruments <\/p>\n
    Act or  admission of all the facts constituting commission of such offences <\/p>\n
    on his part.\n<\/p>\n
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\n                                                15<\/span><\/p>\n
    19.          Now the matters stated in the said pursis being not to the effect <\/p>\n
    of petitioner\/accused having committed offence under section 138 of the <\/p>\n
    Negotiable   Instruments   Act   or   the   matters   admitted   by   him   being <\/p>\n
    insufficient to satisfy all the necessary ingredients  constituting commission <\/p>\n
    of such offences, it is difficult to accept the justification of submission to <\/p>\n
    such effect canvassed by learned advocate for respondent no.1.  At the cost <\/p>\n
    of repetition it is prompted to record that agreement to pay cheque amount <\/p>\n
    would   never   be   construed   as   an   admission   of   guilt     of   commission   of <\/p>\n
    offence under Section 138 of the Negotiable Instruments Act.\n<\/p>\n
    20.          In the present case   since accused was facing the prosecution for <\/p>\n
    commission of an offence under Section 138 of Negotiable Instruments Act <\/p>\n
    and in view of the provisions of Section 143 of the said Act , the Court <\/p>\n
    requiring   the   said   cases   to   be   conducted     summarily     and   thus     the <\/p>\n
    provisions prescribed under  Section  262 to 265 of  the Code of Criminal <\/p>\n
    Procedure being required to be followed for such a cases  and the narration <\/p>\n
    mentioned hereinabove having revealed the stage at which the pursis was <\/p>\n
    presented on behalf of the accused which has resulted in stagnation of the <\/p>\n
    said proceeding, it will be necessary to say that in view of compounding <\/p>\n
    having not occurred, the trial Court was bound to consider the aspect of <\/p>\n
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\n                                                 16<\/span><\/p>\n
    hearing   the   accused  as  warranted  under   Section  254     sub  clause  (1)   of <\/p>\n
    Cr.P.C.  for    SCC No. 4457 of 2006  and 4517 of 2006 and  thereafter to <\/p>\n
    proceed   in   accordance   with   the   procedure   prescribed   for   such   a   trial.\n<\/p>\n
    While for SCC No. 3927 of 2006  Court  was bound to consider the matter <\/p>\n
    in accordance with the law from a stage at which the same has stagnated <\/p>\n
    due to passing of the pursis.\n<\/p>\n
    21.          In the aforesaid state of affairs  and the order passed by the trial <\/p>\n
    Court   revealing   all   the   three   cases   being   posted   for     “consideration   on <\/p>\n
    merits and for judgment”  cannot be said to be an order passed by the trial <\/p>\n
    Court in accordance with the procedure prescribed at the law.  Needless to <\/p>\n
    add that different stage at which the said cases were stagnated itself reveals <\/p>\n
    that the same could not have been posted or at least two  of them could not <\/p>\n
    have   been   posted   in   such   a   manner   by   passing   a   common   order.     The <\/p>\n
    Criminal   Court not being expected to be   a silent spectator at a criminal <\/p>\n
    trial and being expected to navigate  smooth voyage of criminal trial   for <\/p>\n
    quest of a truth was bound to give a clear directive in accordance with the <\/p>\n
    law regarding the purpose for which the trial was posted in order to avoid <\/p>\n
    arousing of confusion in the minds of the parties at a trial.    For the said <\/p>\n
    purpose   trial   Court   was   bound   to   fix   the   matter   as   indicated   in   the <\/p>\n
    preceding paragraphs of this judgment.\n<\/p>\n
                                                                   ::: Downloaded on – 09\/06\/2013 14:48:14 :::<\/span>
\n                                                   17<\/span><\/p>\n
    22.          As observed earlier though Court of Session by rightly observing <\/p>\n
    that passing of such an order by a trial Court was wholly unnecessary  has <\/p>\n
    dismissed   the   applications   in   revision   preferred,   still   the   Sessions   Court <\/p>\n
    having missed the aspect of  the order passed by the trial Court failing to fix <\/p>\n
    the matter for definite purpose to avoid arousing of confusion in the minds <\/p>\n
    of the parties at a trial and only chosen to give the direction for proceeding <\/p>\n
    in accordance with the law also cannot be upheld.   Needless to add ,as a <\/p>\n
    superior Court, the Court of  Session ought to have made such a correction <\/p>\n
    in  order passed by the trial Court for achieving  such purpose.\n<\/p>\n
    23.          In   aforesaid   state   of   an   affairs   the   orders   passed   by   both   the <\/p>\n
    Courts    cannot be  sustained.   Such a conclusion    is  inevitable   as  there <\/p>\n
    appears merits in the submissions of learned counsel for the petitioner  of <\/p>\n
    the trial Court instead of   proceeding with the matter in accordance with <\/p>\n
    the law had posted the same for  consideration on merits and for judgment <\/p>\n
    in flagrant disregard with the provisions prescribed for such a trial.   The <\/p>\n
    rival   submissions   canvassed   by   the   counsel   for   respondent   no.1     of   the <\/p>\n
    matter   being not fixed for a judgment and or the respondent no.1 had <\/p>\n
    merely requested for posting the cases for further proceedings due to there <\/p>\n
    being  not  settlement  will  not  survive  in   view of  latter   part  of   the  order <\/p>\n
    passed by the trial Court itself revealing matter being fixed for a judgment <\/p>\n
                                                                      ::: Downloaded on – 09\/06\/2013 14:48:14 :::<\/span>
\n                                             18<\/span><\/p>\n
    at least in two cases before completion of the gamut of summary trial as <\/p>\n
    prescribed   by the procedural law and for the rest of the submissions no <\/p>\n
    material being placed before this Court.\n<\/p>\n
    24.        For all the reasons stated hereinabove for serving the ends of <\/p>\n
    justice, the order passed by the Court of Sessions in all the said revision <\/p>\n
    applications and so also by trial Court is hereby quashed and set aside  to <\/p>\n
    put at the  rest unnecessary confusion    arisen  within  the  parties    due  to <\/p>\n
    same.  The trial court is directed to proceed with the matter in accordance <\/p>\n
    with law from the stage at which the same was stagnated i.e. as clarified in <\/p>\n
    paragraph no. 20 hereinabove.   Since it is apparent that passing of such <\/p>\n
    order has resulted in forestalling of trial for considerable amount, the trial <\/p>\n
    court is directed to dispose of the said cases as expeditiously as possible.\n<\/p>\n
    25.        Rule is made absolute in above terms.\n<\/p>\n
                                                     (P.D. KODE, J.)<\/p>\n
                                       ………\n<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 14:48:14 :::<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Shri Gajanan Narayan Joshi vs Haridas Bhikulal Jobanputra on 18 July, 2009 Bench: P. D. Kode 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. CRIMINAL APPLICATION NO.530\/2009 WITH CRIMINAL APPLICATION NO.531\/2009 WITH CRIMINAL APPLICATION NO.532\/2009 (1) Criminal Application No.530\/2009 Shri Gajanan Narayan Joshi, Aged about 53 years, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-152485","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nShri Gajanan Narayan Joshi vs Haridas Bhikulal Jobanputra on 18 July, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shri-gajanan-narayan-joshi-vs-haridas-bhikulal-jobanputra-on-18-july-2009-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shri Gajanan Narayan Joshi vs Haridas Bhikulal Jobanputra on 18 July, 2009 - 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