{"id":241767,"date":"2009-10-09T00:00:00","date_gmt":"2009-10-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/hari-govind-hatwar-vs-the-state-of-maharashtra-on-9-october-2009-2"},"modified":"2019-03-02T15:57:26","modified_gmt":"2019-03-02T10:27:26","slug":"hari-govind-hatwar-vs-the-state-of-maharashtra-on-9-october-2009-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/hari-govind-hatwar-vs-the-state-of-maharashtra-on-9-october-2009-2","title":{"rendered":"Hari Govind Hatwar vs The State Of Maharashtra on 9 October, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Hari Govind Hatwar vs The State Of Maharashtra on 9 October, 2009<\/div>\n
Bench: P. D. Kode<\/div>\n
                               1\n\n      IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                  NAGPUR BENCH : NAGPUR\n\n\n\n\n                                                                      \n           CRIMINAL APPLICATION NO. 2918\/2008\n\n\n\n\n                                              \n                          with\n\n           CRIMINAL APPLICATION NO. 2919\/2008\n                          with\n\n\n\n\n                                             \n           CRIMINAL APPLICATION NO. 2920\/2008\n                          with\n\n           CRIMINAL APPLICATION NO. 2921\/2008\n                          with\n\n\n\n\n                                     \n           CRIMINAL APPLICATION NO. 2922\/2008\n                       ig      ...\n                     \n    CRIMINAL APPLICATION NO. 2918\/2008\n\n    Hari Govind Hatwar,\n      \n\n    aged about - Adult,\n    Occupation: Business,\n   \n\n\n\n    Resident of 151-A,\n    Shreekrupa Karmadham,\n    Behind Sangam Theatre,\n    Shivnagar, Nagpur.               .. APPLICANT\n\n\n\n\n\n             .. Versus ..\n\n\n    1. The State of Maharashtra.\n\n\n\n\n\n    2. Mrs. Tejashri M. Desai,\n       Resident of Rahate Colony,\n       Jail Road, Nagpur.         .. NON-APPLICANTS\n\n                        ...\n\n\n\n\n                                              ::: Downloaded on - 09\/06\/2013 15:12:44 :::\n                                      2\n\n    CRIMINAL APPLICATION NO. 2919\/2008\n\n\n\n\n                                                                          \n    Hari Govind Hatwar,\n    aged about - Adult,\n    Occupation: Business,\n\n\n\n\n                                                  \n    Resident of 151-A,\n    Shreekrupa Karmadham,\n    Behind Sangam Theatre,\n    Shivnagar, Nagpur.                   .. APPLICANT\n\n\n\n\n                                                 \n             .. Versus ..\n\n\n    1. The State of Maharashtra.\n\n\n\n\n                                         \n    2. Mrs. Vrunda M. Desai,\n                      \n       aged 28 years,\n       Occupation: Student,\n       Resident of Rahate Colony,\n                     \n       Jail Road, Nagpur.         .. NON-APPLICANTS\n\n                        ..........\n      \n\n    CRIMINAL APPLICATION NO. 2920\/2008\n   \n\n\n\n    Hari Govind Hatwar,\n    aged about - Adult,\n    Occupation: Business,\n    Resident of 151-A,\n    Shreekrupa Karmadham,\n\n\n\n\n\n    Behind Sangam Theatre,\n    Shivnagar, Nagpur.                   .. APPLICANT\n\n\n             .. Versus ..\n\n\n\n\n\n    1. The State of Maharashtra.\n\n    2. Mrs. Usha w\/o Manohar Desai,\n       aged 59 years,\n       Occupation: Money Lender,\n       Resident of Rahate Colony,\n       Jail Road, Nagpur.         .. NON-APPLICANTS\n\n\n\n\n                                                  ::: Downloaded on - 09\/06\/2013 15:12:44 :::\n                                 3\n\n\n\n\n                                                                     \n    CRIMINAL APPLICATION NO. 2921\/2008\n\n\n\n\n                                             \n    Hari Govind Hatwar,\n    aged about - Adult,\n    Occupation: Business,\n    Resident of 151-A,\n\n\n\n\n                                            \n    Shreekrupa Karmadham,\n    Behind Sangam Theatre,\n    Shivnagar, Nagpur.              .. APPLICANT\n\n\n\n\n                                    \n              .. Versus ..\n                       \n    1. The State of Maharashtra.\n                      \n    2. Ms. Yogita S. Umalkar,\n       resident of Rahate Colony,\n       Jail Road, Nagpur.           .. NON-APPLICANTS\n\n                         ...\n      \n   \n\n\n\n    CRIMINAL APPLICATION NO. 2922\/2008\n\n    Hari Govind Hatwar,\n    aged about - Adult,\n\n\n\n\n\n    Occupation: Business,\n    Resident of 151-A,\n    Shreekrupa Karmadham,\n    Behind Sangam Theatre,\n    Shivnagar, Nagpur.              .. APPLICANT\n\n\n\n\n\n              .. Versus ..\n\n\n    1. The State of Maharashtra.\n\n    2. Ram Bhaskar Desai,\n       aged 56 years,\n\n\n\n\n                                             ::: Downloaded on - 09\/06\/2013 15:12:44 :::\n                                   4\n\n         Occupation: Business,\n         R\/o C\/o Manohar Bhaskar Desai,\n\n\n\n\n                                                                           \n         Advocate,\n         Rahate Colony,\n         Jail Road, Nagpur.       ..NON-APPLICANTS\n\n\n\n\n                                                  \n                         ..........\n    Mr. Anil S. Mardikar, Ld. Advocate for Applicants (In all\n    Criminal Applications)\n\n\n\n\n                                                 \n    Mr. P. D. Kothari, Ld. AGP for Respondent no.1 ( in All\n    Criminal Applications)\n\n    Mr. R.S. Parsodkar, Ld. Advocate with Ms. P.D. Rane, Ld.\n    Advocate for Respondent no.2\n\n\n\n\n                                      \n                        ...........\n                      \n    CORAM : P.D. KODE, J.\n                     \n    DATE OF RESERVING THE JUDGMENT : JULY 18 , 2009\n    DATE OF PRONOUNCING THE JUDGMENT: OCTOBER 09,2009\n\n\n    JUDGMENT\n<\/pre>\n
    1.         By each of    these applications     under Sections<\/p>\n
    482 of the Code of Criminal Procedure (hereinafter for<\/p>\n
    short referred as “Code”) the applicant\/accused              facing<\/p>\n
    prosecution in the Court of Additional Chief Judicial<\/p>\n
    Magistrate, Nagpur along with other accused                       for<\/p>\n
    commission of offence under Section 138 of the Negotiable<\/p>\n
    Instrument Act in Criminal Complaint Case Nos. 508, 466,<\/p>\n
    507, 521 and 522 of 2002          instituted upon the private<\/p>\n
    complaint lodged by      respective non-applicant          no.2 in<\/p>\n
    respective application    has thrown challenge to orders<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 15:12:44 :::<\/span>
\n                                   5<\/span><\/p>\n
    passed by the trial Court in respective cases of :\n<\/p>\n
          (a) issuing process and<\/p>\n<\/blockquote>\n
          (b) rejecting an application for dismissal and\/<\/p>\n
          or discharge preferred by him.<\/p>\n<\/blockquote>\n
    Similarly he has also thrown challenge to orders dated<\/p>\n
    11.7.2008 passed by learned Ad hoc Additional Sessions<\/p>\n
    Judge, Nagpur once again after remand ordered by this<\/p>\n
    Court rejecting respective application in revision viz. 178,<\/p>\n
    179, 180, 220 and 221 of 2003 respectively preferred by<\/p>\n
    him along with co-accused in respective case throwing a<\/p>\n
    challenge    to aforesaid orders passed by the trial Court<\/p>\n
    respectively in earlier referred Cr. C.C.Nos. 508, 466, 507,<\/p>\n
    521 and 522 of 2002 of the Court of Chief Judicial<\/p>\n
    Magistrate, Nagpur.       The applicant\/accused has also<\/p>\n
    prayed for quashing and setting aside all the said orders<\/p>\n
    passed by trial Court as well as Court of Revision.\n<\/p>\n
    2.          The facts in brief giving rise to preferring such<\/p>\n
    applications can be set out as under; –\n<\/p>\n
                The applicant\/accused after his retirement as a<\/p>\n
    School Teacher has started a stationary shop business<\/p>\n
    registered under the Bombay Shops and Establishment Act<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 15:12:44 :::<\/span>
\n                                        6<\/span><\/p>\n
    under     the   name    of   proprietary        concern      Shreekrupa<\/p>\n
    Nityopyogi.      His two sons and daughter-in-law were also<\/p>\n
    running various proprietary shops also registered under<\/p>\n
    the same enactment under different names.\n<\/p>\n
    3.          Each of non-applicant no.2 had                   respectively<\/p>\n
    instituted above referred five criminal complaint cases<\/p>\n
    against the applicant and other co-accused in respective<\/p>\n
    case    for commission of offence under Section 138 of the<\/p>\n
    Negotiable Instruments Act amongst other                       upon the<\/p>\n
    contentions that the applicant\/accused was Chief Promoter<\/p>\n
    of M\/s Shreekrupa Udyog Samuha and had floated various<\/p>\n
    schemes to the effect that the amounts deposited in<\/p>\n
    pursuance of the said scheme would be returned along<\/p>\n
    with an interest.       It is the case of the respective non-\n<\/p>\n
    applicant no.2 in respective complaint lodged that the<\/p>\n
    applicant has issued the cheques for the amounts as<\/p>\n
    narrated in the respective complaint to them.                   Since the<\/p>\n
    said cheques were not honoured             and the commission of<\/p>\n
    offence    had    occurred    as       stated    in    the     respective<\/p>\n
    complaint , the said non-applicants were required to<\/p>\n
    institute said cases.\n<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 15:12:44 :::<\/span>
\n                                    7<\/span><\/p>\n
    4.          The applicant\/accused after being served with<\/p>\n
    process for the C.C. Nos. 508, 466 and 507 of 2002 along<\/p>\n
    with co-accused in respective case had filed an application<\/p>\n
    under Section 142 (A) of Negotiable Instruments Act            for<\/p>\n
    dismissal of the complaint on the various contentions<\/p>\n
    amongst other of the same being filed in the name of<\/p>\n
    respective non-applicant for respective case by her power<\/p>\n
    of attorney holder and so also father and thus being not<\/p>\n
    made\/filed by the payee of cheque or holder in due course<\/p>\n
    of a cheque and thus the same falling short of satisfying<\/p>\n
    necessary     ingredients of   Section 142(a) of Negotiable<\/p>\n
    Instruments Act.      The learned Additional Chief Judicial<\/p>\n
    Magistrate for the reasons recorded in separate orders<\/p>\n
    dated 5.5.2003 passed in each of cases had rejected the<\/p>\n
    said applications.\n<\/p>\n
    5.          Similarly the applicant\/accused along with co-\n<\/p>\n
    accused     after service of process upon them in each of<\/p>\n
    C.C. Nos. 521, 522 and one more case            had filed an<\/p>\n
    application   for    discharging   them    from      the     said<\/p>\n
    proceedings upon several contentions such as the said<\/p>\n
    cases being related to recovery of an amount paid in year<\/p>\n
    1983 being of civil nature, being hopelessly time barred,<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:12:44 :::<\/span>
\n                                    8<\/span><\/p>\n
    multiple causes of action being united in a single case,<\/p>\n
    relevant bank account being seized by the Police much<\/p>\n
    prior to the alleged dishonour of cheques and as such<\/p>\n
    there surviving    no question of dishonour of cheques as<\/p>\n
    they were prevented to make payment due to                  orders<\/p>\n
    passed by the Police, the relevant cheques being not<\/p>\n
    signed by some of them etc. The learned Additional Chief<\/p>\n
    Judicial Magistrate for the reasons recorded in common<\/p>\n
    order dated 21.6.2003ig     passed had     rejected the said<\/p>\n
    applications.\n<\/p>\n
    6.          Applicant along with co-accused in respective<\/p>\n
    cases against rejection of the said applications preferred<\/p>\n
    in five cases by said orders passed by learned Magistrate<\/p>\n
    has preferred the earlier referred revision applications to<\/p>\n
    the Court of Session.         Since    on the date fixed for<\/p>\n
    arguments in the said applications for revision neither the<\/p>\n
    applicant    nor   his   Advocate     appeared    to     advance<\/p>\n
    arguments, the learned 6th Ad hoc Additional Sessions<\/p>\n
    Judge, Nagpur by placing reliance upon Section 403 of IPC<\/p>\n
    and on merits , holding that no case was made out for<\/p>\n
    interference against the impugned orders in exercise of<\/p>\n
    revisional jurisdiction has    dismissed the same for the<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 15:12:44 :::<\/span>
\n                                     9<\/span><\/p>\n
    reasons recorded in the common order dated 20.6.2005.\n<\/p>\n
    7.          Thereafter   the    accused-applicant       preferred<\/p>\n
    Applications No.2473 to 2477 of 2005 under Section 482 of<\/p>\n
    the Code of Criminal Procedure throwing challenge to the<\/p>\n
    order of dismissal dated 20.6.2005 passed by learned 6th<\/p>\n
    Ad   hoc    Additional   Sessions   Judge,   Nagpur      rejecting<\/p>\n
    applications in revision preferred and so also the orders<\/p>\n
    passed by the trial Court of issuing process and thereafter<\/p>\n
    rejecting applications for discharge and dismissal preferred<\/p>\n
    by the accused\/applicant         in the respective complaint<\/p>\n
    against which      respective    application in revision was<\/p>\n
    preferred by him.\n<\/p>\n
    8.          All the said applications were disposed by this<\/p>\n
    Court by a common judgment passed on 21.4.2008 by<\/p>\n
    setting    aside   the   said   common    order     order     dated<\/p>\n
    20.6.2005 passed by 6th Ad-hoc Additional Sessions Judge,<\/p>\n
    Nagpur by imposing the costs of Rs.2,000\/- upon the<\/p>\n
    applicant for each of the said applications with further<\/p>\n
    direction to the applicants and respondent no.2         to appear<\/p>\n
    before Revisional Court on a date fixed and directing<\/p>\n
    revisional court to dispose of said applications in revision<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 15:12:44 :::<\/span>
\n                                      10<\/span><\/p>\n
    expeditiously in light of the observations made by this<\/p>\n
    court, in accordance with law, by amongst other mainly<\/p>\n
    observing in paragraph 6 of the said judgment to the<\/p>\n
    effect,<\/p>\n
          6. ………………………………………….No doubt, the
\n          approach of the Revisional Court in disposing of the<\/p>\n
          revision applications by resorting to Section 403 of
\n          Cr.P.C. cannot be faulted. It is well settled that
\n          criminal revision applications filed by the party
\n          cannot be dismissed in default, once it is admitted
\n          and the Revisional Court is bound to dispose of the<\/p>\n
          Revision Application even in the absence of the
\n          party filing the Revision Application and his<\/p>\n
          advocate. However, in the present case, the fact
\n          remains that the applicant has not been able to
\n          advance arguments before the Revisional Court on<\/p>\n
          account of non-appearance of his advocate on the
\n          date fixed for arguments. Therefore, in my
\n          considered opinion, it would be just and proper and
\n          in the interest of justice to quash and set aside the
\n          impugned judgments and orders and to give an<\/p>\n
          opportunity to the applicant to advance arguments
\n          before the Revisional Court, by compensating<\/p>\n
          respondent no.2.\n<\/p>\n
    9.         The learned counsel for the applicant urged for<\/p>\n
    quashing\/setting aside all orders impugned or at least<\/p>\n
    orders dated 11.7.2008 passed by Ad hoc Additional<\/p>\n
    Sessions Judge-5, Nagpur after matters were remanded to<\/p>\n
    Court of Revision by this Court on the count that :\n<\/p>\n
    i)          the order passed by the Revisional Court clearly<\/p>\n
    reveals that case of applicant applications had remained to<\/p>\n
    be reconsidered and decided after hearing the submissions<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 15:12:44 :::<\/span>
\n                                    11<\/span><\/p>\n
    of applicant i.e. as directed by this Court vide order dated<\/p>\n
    21.4.2008    passed    while   deciding   earlier    applications<\/p>\n
    preferred under Section 482 of the Code by the applicant;\n<\/p>\n
    ii)         the applicant cannot be faulted for the same as<\/p>\n
    such a situation has    reoccurred in view of his advocate<\/p>\n
    again having failed to attend in spite of being instructed<\/p>\n
    iii)        ultimately issue agitated by applicant being not<\/p>\n
    decided after hearing the applicant regarding merits of<\/p>\n
    matter further opportunity deserves to be given to him for<\/p>\n
    serving the ends of justice i.e. for serving the purpose for<\/p>\n
    which order dated 21.4.2008 was passed by this Court,<\/p>\n
    iv)         such an     opportunity deserves to be given<\/p>\n
    having regard to merits of the case of the applicant, the<\/p>\n
    grounds upon which challenge is thrown by him, to orders<\/p>\n
    impugned ,and so also high stakes involved in the matter,<\/p>\n
    v)          such an opportunity deserves to be given as the<\/p>\n
    default occurred on part of the applicant is not of such a<\/p>\n
    nature which cannot be condoned by imposing suitable<\/p>\n
    terms upon applicant      as imposed by this Court while<\/p>\n
    condoning similar default occurred on earlier occasion,<\/p>\n
    vi)         granting such an opportunity to the applicant is<\/p>\n
    unlikely to cause any prejudice to the non-applicants              as<\/p>\n
    said non-applicants would be getting full opportunity to<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 15:12:44 :::<\/span>
\n                                 12<\/span><\/p>\n
    contest the matter on merits.\n<\/p>\n
    vii)      on the contrary non-granting of an opportunity to<\/p>\n
    the applicant will deprivehim getting the matter tested on<\/p>\n
    merit at early occasion and such an eventuality may force<\/p>\n
    him to unnecessarily face ordeal of criminal prosecution<\/p>\n
    for numerous years and that too frustrating provisions of<\/p>\n
    Section 482 of the Code of Criminal Procedure,<\/p>\n
    viii)     considering short gap in between this Court and<\/p>\n
    Revisional Court deciding the matter after remand i.e. in<\/p>\n
    between 21st of April and       11th July 2008, hardly there<\/p>\n
    exists   any substance in the submission of conduct of<\/p>\n
    applicant or his advocate   remaining absent        before the<\/p>\n
    Court of Revision was a calculated conduct for prolonging<\/p>\n
    proceedings before the lower Court;\n<\/p>\n
    ix)       since the complaints pertaining to respective<\/p>\n
    application Nos. 2918 to 2920 does not reveal that the<\/p>\n
    bounced cheque was signed by the applicant i.e. himself<\/p>\n
    being drawer of the said cheque, merely because he has<\/p>\n
    issued\/ given\/handed over the cheques, would not be<\/p>\n
    sufficient to satisfy ingredients of Section 138 read with<\/p>\n
    Section 142 of the Negotiable Instruments Act;\n<\/p>\n
    x)        a mere handing over of a cheque drawn on the<\/p>\n
    account of a company would not make a person handing<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 15:12:44 :::<\/span>
\n                                  13<\/span><\/p>\n
    over cheque     liable for commission of offence punishable<\/p>\n
    under Section 138 of the Negotiable Instruments Act and<\/p>\n
    particularly in absence of company being made party;\n<\/p>\n
    xi)         since the applicant was neither signatory to the<\/p>\n
    cheques nor in any way concerned with the liabilities<\/p>\n
    involved in the said cheques , the complaint and\/or or the<\/p>\n
    order of issuing process cannot be sustained;\n<\/p>\n
    xii)         since the complaints related with application<\/p>\n
    Nos. 2918 to 2920 failed to disclose commission of<\/p>\n
    offences due to the same being regarding civil transaction<\/p>\n
    of recovery of money advance in the year 1993,               and\/or<\/p>\n
    the relevant accounts being seized by the police prior to<\/p>\n
    alleged dishonour of cheques , complaints were not<\/p>\n
    tenable nor the same       warranted issuing of a process<\/p>\n
    thereon;\n<\/p>\n
    xiii)       process being issued and or prosocution being<\/p>\n
    continued in spite of respective complaint having failed to<\/p>\n
    disclose commission of an offence by the applicant.\n<\/p>\n
    10.         The learned counsel for the applicant in support<\/p>\n
    of      submission   canvassed placed reliance upon the<\/p>\n
    decision in a case of<\/p>\n
    a)          S.M.S.   Pharmaceuticals   Ltd.     Neeta        Bhalla<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 15:12:44 :::<\/span>
\n                                       14<\/span><\/p>\n
    reported in AIR 2005 Supreme Court 3512,<\/p>\n
    b)        Applicant and one .vs. State of Mah. And another<\/p>\n
    dated 28th July, 2008 in W.P.No. 283 of 2005,<\/p>\n
    c)        Raghu     Lakshaminarayanan         Vs.      Fine      Tubes<\/p>\n
    reported in 2007 ALL MR (Cri) 1738 (SC),<\/p>\n
    d)        Selvarani Cotton Mills Pvt. Ltd. .vs. State of<\/p>\n
    Maharashtra reported in 2005 ALL MR (Cri) 437,<\/p>\n
    e)        Biji Jacob .vs. Annie Mathew & Ors. Reported in<\/p>\n
    2005 ALL MR (Cri) Journal 72 and<\/p>\n
    f)        Gangadhar        .vs.    Shrenikamal      and       another<\/p>\n
    reported in 2003 (2) DCR 36.\n<\/p>\n
    11.       The    learned      counsel   for   respondent           no.2<\/p>\n
    vehemently opposed submission made for remanding the<\/p>\n
    matter and so also for setting aside the orders impugned<\/p>\n
    and supported order passed by Revisional and so also by<\/p>\n
    trial Court by urging that:\n<\/p>\n
    i)        this Court having already held that in event of<\/p>\n
    applicant having failed to appear before the Court of<\/p>\n
    Revision , said Court was justified to decide the matter on<\/p>\n
    merits by virtue of provisions of Section 403 of Code the<\/p>\n
    order of Revisional Court presently challenged cannot be<\/p>\n
    faulted on the said count,<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 15:12:44 :::<\/span>
\n                                    15<\/span><\/p>\n
    ii)        in spite of chance being given to the applicant by<\/p>\n
    this Court vide order dated 21.4.2008 , the applicant\/his<\/p>\n
    advocate     having again      deliberately chosen to remain<\/p>\n
    absent and thus having opted not to make submission<\/p>\n
    clearly   indicates   of   there   being   no   merits      in   false<\/p>\n
    contention taken by him for setting aside the orders<\/p>\n
    impugned,<\/p>\n
    iii)       such conduct of the applicant                and\/or his<\/p>\n
    advocate    clearly    estopps\/bars
\n                           ig              applicant          of     again<\/p>\n
    preferring an application for challenging the said order or<\/p>\n
    at least having regard to such conduct of the applicant ,<\/p>\n
    the application preferred by him deserves to be dismissed,<\/p>\n
    iv)        since remedy provided under Section 482 of the<\/p>\n
    Code of Criminal Procedure is an exceptional remedy and<\/p>\n
    the Court is required to exercise power under said section<\/p>\n
    very sparingly and only for the purposes stated in the said<\/p>\n
    section and so also for the persons who are diligent and<\/p>\n
    the conduct of the applicant clearly demonstrates that he<\/p>\n
    is not such a person and on the contrary he is abusing the<\/p>\n
    process of the Court for prolonging the proceedings in a<\/p>\n
    lower Court , the application deserves to be dismissed,<\/p>\n
    v)         since cases of nature requiring them to be<\/p>\n
    expeditiously disposed of preferred by the complainant has<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 15:12:44 :::<\/span>
\n                                         16<\/span><\/p>\n
    remained pending since 2003 due to applicant without any<\/p>\n
    reason filing the proceedings in the higher Court and not<\/p>\n
    remaining present in the same , requires dismissal of his<\/p>\n
    application,<\/p>\n
    vi)          since the complaints filed by non-applicant no.2<\/p>\n
    squarely     reveal       all   the      necessary    ingredients          of<\/p>\n
    commission of offence under Section 138 of the Negotiable<\/p>\n
    Instruments Act, the same were                 warranting issue of<\/p>\n
    process and so also neither same were liable to be<\/p>\n
    dismissed nor the accused therein was deserving to be<\/p>\n
    discharged, there is no substance in any of the contentions<\/p>\n
    taken by the applicant, nor the orders passed by trial or<\/p>\n
    Revisional Court can be either faulted or would be liable to<\/p>\n
    be set aside as prayed by the applicant,<\/p>\n
    vii)         the applicant since earlier having chosen for<\/p>\n
    preferring     an     alternative     remedy    by     preferring         an<\/p>\n
    application in revision and the same being twice rightfully<\/p>\n
    dismissed by the Court of Session and hardly now there<\/p>\n
    exists any ground for interfering with the said orders<\/p>\n
    passed by the Court of Session nor would warrant this<\/p>\n
    Court making any interference by exercising powers under<\/p>\n
    Section 482 of Cr.P.C.,<\/p>\n
    viii)        the applicant has utterly failed to make out any<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 15:12:44 :::<\/span>
\n                                    17<\/span><\/p>\n
    case for once again exercising powers under Section 482 of<\/p>\n
    Cr.P.C.,<\/p>\n
    12.           Alike learned counsel for the applicant, the<\/p>\n
    learned counsel for the non-applicant no.2 for supporting<\/p>\n
    submission canvassed placed reliance upon the decision in<\/p>\n
    a case of :\n<\/p>\n
    a)            Gopal Chavhan .vs. Smt. Satya reported in 1979<\/p>\n
    Cr.L.J. Page 446,\n<\/p>\n
    b)            Subramanium .vs. State    reported in 2005 (1)<\/p>\n
    Mh.L.J. Page 627,<\/p>\n
    c)            Monika Kumar .vs. State of U.P. Reported in<\/p>\n
    2008 (3) SCC Cri. 648,<\/p>\n
    13.           The learned APP for respondent no.1 by pointing<\/p>\n
    out the orders passed in earlier application under Section<\/p>\n
    482 filed by the applicant urged that considering the<\/p>\n
    narrow scope for exercising powers under Section 482 , the<\/p>\n
    applicant is not entitled to have any relief in the present<\/p>\n
    application as his conduct is of nature of forestalling the<\/p>\n
    decisions in a criminal trial expected to be completed as<\/p>\n
    early as possible.\n<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 15:12:44 :::<\/span>
\n                                   18<\/span><\/p>\n
    14.       Having    perused        the   record    and      having<\/p>\n
    considered the submissions advanced by rival parties, the<\/p>\n
    only point whether as prayed        the applicants have made<\/p>\n
    out any case for exercising powers under Section 482 of<\/p>\n
    the Code of Criminal Procedure arises for consideration in<\/p>\n
    this matter.\n<\/p>\n
    15.       Having regard to point arisen for consideration in<\/p>\n
    light of controversy involved and the same being in<\/p>\n
    relation of exercising powers under Section 482 of the<\/p>\n
    Code , it will not be out of place to state       legal position<\/p>\n
    about the same being set out by plethora of the decisions<\/p>\n
    of the Apex Court to the effect that:\n<\/p>\n
    i)        the very nature of special         powers conferred<\/p>\n
    under the said section   denotes that the same are to be<\/p>\n
    exercised sparingly in exceptional cases for meeting out<\/p>\n
    the purposes stated in the said section,<\/p>\n
    ii)       though there is no bar for exercising such<\/p>\n
    powers even in the event of existence of an alternate<\/p>\n
    remedy, still in such an event the same should be<\/p>\n
    exercised in very exceptional circumstances,<\/p>\n
    iii)      the same should be exercised only for the<\/p>\n
    purposes as envisaged by Section 482 of the Cr.P.C.,<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 15:12:44 :::<\/span>
\n                                  19<\/span><\/p>\n
    iv)       the same is to be exercised for diligent persons<\/p>\n
    and not for defaulters.\n<\/p>\n
    16        On the aforesaid yardsticks, now examining<\/p>\n
    conduct of the present applicant in the present matter at<\/p>\n
    the first blush it can be safely said that initially the<\/p>\n
    applicant himself having not chosen to apply for exercising<\/p>\n
    powers under Section 482 of the Code and           having opted<\/p>\n
    to prefer applications in revision before the Court of<\/p>\n
    Session, itself denotes   applicant himself being aware of<\/p>\n
    not having any exceptional case warranting exercising of<\/p>\n
    such power in spite of the existence of alternate remedy by<\/p>\n
    way of preferring applications in revision.\n<\/p>\n
    17.       Apart from the aforesaid further events occurred<\/p>\n
    in the matter denote that though applicant has chosen and<\/p>\n
    availed such remedy , such          applications in revision<\/p>\n
    preferred by him for challenging orders passed by the trial<\/p>\n
    Court came to be dismissed after considering the merits of<\/p>\n
    the matter though without hearing the applicant or his<\/p>\n
    advocate in view of themselves having not               remained<\/p>\n
    present at the time of hearing of the said application by<\/p>\n
    Court of Revision. The further events occurred denote that<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 15:12:44 :::<\/span>
\n                                 20<\/span><\/p>\n
    upon applications under Section 482 preferred by the<\/p>\n
    applicant against the said order of dismissal and so also<\/p>\n
    the orders passed by the trial Court, this Court vide order<\/p>\n
    dated 21.4.2008 for serving ends of justice     has only set<\/p>\n
    aside order dated 20.6.2005       passed by the Court of<\/p>\n
    Session by imposing cost upon       the applicant and had<\/p>\n
    remanded the matter for giving an opportunity to advance<\/p>\n
    submissions about which grievance was made.\n<\/p>\n
    18.<\/p>\n
              The careful perusal of the observations made by<\/p>\n
    this Court in the order      dated 21.4.2008 and more<\/p>\n
    particularly the observations made in paragraph no.6 of<\/p>\n
    the same reproduced hereinabove       and so also the final<\/p>\n
    order passed    clearly indicates that this Court has then<\/p>\n
    only found not necessary to exercise powers under Section<\/p>\n
    482 of the Code for quashing\/setting aside the orders<\/p>\n
    passed by the trial Court and has found it fit to remand the<\/p>\n
    matter for consideration by the revisional court after<\/p>\n
    hearing both the parties.     The said order         also thus<\/p>\n
    denotes of then no case being found to have been made<\/p>\n
    out by applicant or otherwise spelt warranting exercising<\/p>\n
    powers under Section 482 for quashing and setting aside<\/p>\n
    impugned orders passed by the trial Court.\n<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:12:44 :::<\/span>
\n                                    21<\/span><\/p>\n
    19.          Having regard to said feature         and further<\/p>\n
    events also denoting     that once again applicant and his<\/p>\n
    advocate had remained absent           before    the Court of<\/p>\n
    Session i.e. after the matter was remanded and that too in<\/p>\n
    spite of the directions given by this Court and even<\/p>\n
    thereafter    in   present   applications   having     failed     to<\/p>\n
    establish\/explained any convincing cause or reason for<\/p>\n
    such absence makes it extremely difficult to find any fault<\/p>\n
    with the orders passed by the Revisional Court on<\/p>\n
    11.7.2008       in dismissing the said applications after<\/p>\n
    considering the matter upon the merits. Needless to add<\/p>\n
    that by   the order dated 21.4.2008 it has been already<\/p>\n
    observed of the Revisional Court in absence of the<\/p>\n
    applicant being justified to decide the applications after<\/p>\n
    considering the merits of the matter by virtue of the<\/p>\n
    provisions of Sections 403 of the Code. Thus no fault can<\/p>\n
    be found out with the order dated 11.7.2008 again passed<\/p>\n
    by the Revisional Court in similar fact and situation.\n<\/p>\n
    20.          Apart from the aforesaid and having regard to<\/p>\n
    the fact of this Court having remanded the matter by order<\/p>\n
    dated 21.4.2008 for giving an opportunity to the applicant<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 15:12:44 :::<\/span>
\n                                 22<\/span><\/p>\n
    to make the submissions and specific directions to remain<\/p>\n
    present before the Court of Revision in terms of the said<\/p>\n
    order but once again the applicant and his advocate having<\/p>\n
    remained absent and the Court of Revision being required<\/p>\n
    to decide the matter expeditiously in view of the direction<\/p>\n
    given by this Court, now it is difficult to    entertain any<\/p>\n
    grievance of the applicant having not received any<\/p>\n
    opportunity to place merits of his case before the Court or<\/p>\n
    on the said count for giving an opportunity to such<\/p>\n
    defaulter by once again remanding matter to Court of<\/p>\n
    Sessions by setting aside orders passed as tried to be<\/p>\n
    canvassed by the learned counsel for the applicant. The<\/p>\n
    conduct of the applicant clearly denotes of himself having<\/p>\n
    waived the opportunity given by this Court by           already<\/p>\n
    exercising powers under Section 482 of the Code by<\/p>\n
    passing an order dated 21.4.2008.\n<\/p>\n
    21.        Having regard to the aforesaid and the fact<\/p>\n
    situation having remained the same as it is at the time of<\/p>\n
    dismissal of applications in revision on merits on 20.6.2005<\/p>\n
    and so also at the time of dismissal of earlier applications<\/p>\n
    under Section 482 of the Code on 21.4.2008 and so also<\/p>\n
    even careful consideration of the order dated 11.7.2008 in<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:12:44 :::<\/span>
\n                                 23<\/span><\/p>\n
    light of the submissions canvassed by learned counsel for<\/p>\n
    the applicant not revealing any illegality, arbitrariness or<\/p>\n
    capriciousness warranting an interference on the said<\/p>\n
    count and facts and circumstances not warranting any<\/p>\n
    reason for exercising powers under Section 482 of the<\/p>\n
    Code, there     appears     substance in the submission<\/p>\n
    canvassed by the learned counsel for non-applicant no.2<\/p>\n
    and so also the learned APP of    no case existing on any<\/p>\n
    count for once again exercising powers under Section 482<\/p>\n
    of the Code for setting aside either such the orders passed<\/p>\n
    by the Court of Revision and so also by the trial Court for<\/p>\n
    which this Court had declined on the earlier occasion while<\/p>\n
    passing order dated 21.4.2008.\n<\/p>\n
    22.        The same appears accordingly even after taking<\/p>\n
    into consideration the submission of the learned counsel<\/p>\n
    for the applicant about merits of the matter as the said<\/p>\n
    submission are more so related with the defence of the<\/p>\n
    applicant i.e. cheque being not signed by him or himself<\/p>\n
    being not drawer or the matter being of civil nature and \/or<\/p>\n
    he had just cause for not making the payment due to<\/p>\n
    accounts being seized by the Police etc. as narrow scope<\/p>\n
    and   ambit of the powers conferred under Section 482 of<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:12:44 :::<\/span>
\n                                   24<\/span><\/p>\n
    the Code warrants only to take into consideration whether<\/p>\n
    the complaint     by itself   i.e.   de hors    other      matters,<\/p>\n
    discloses the commission of offence alleged and thus for<\/p>\n
    the said purpose Court being not supposed            to take into<\/p>\n
    consideration other extraneous matters not spelt from the<\/p>\n
    complaint and record.\n<\/p>\n
    23.       Now with regard to the decisions relied by the<\/p>\n
    learned counsel for the applicant, though hardly any<\/p>\n
    quarrel can be entertained about legal proposition set out<\/p>\n
    therein , still considering facets of vital issue involved in<\/p>\n
    the present matter, it is difficult to accept that the same<\/p>\n
    are useful in any manner to persistence defaulter applicant<\/p>\n
    for advancing his case for quashing and setting aside the<\/p>\n
    orders impugned in the present applications after passage<\/p>\n
    of period of about six to seven years after issuance of<\/p>\n
    process in the year 2003.\n<\/p>\n
    24.       Since   while   considering    present       application<\/p>\n
    preferred under Section 482 of the Code, it has been to the<\/p>\n
    notice of this Court by non-applicants that practically no<\/p>\n
    progress has been achieved in criminal cases instituted by<\/p>\n
    them way back in the year 2003 in spite of passage of<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 15:12:44 :::<\/span>
\n                                  25<\/span><\/p>\n
    about six to seven years           due to applicant having<\/p>\n
    repeatedly taken    proceedings to the higher Court            but<\/p>\n
    having not diligently prosecuted the same, duty casted<\/p>\n
    upon this Court under Section 482 of the Code , warrants<\/p>\n
    giving an appropriate direction for ensuring expeditious<\/p>\n
    disposal of the said criminal cases.\n<\/p>\n
    25.       In the premises aforesaid , the applications        san<\/p>\n
    merits are   hereby dismissed with a direction to the trial<\/p>\n
    Court to dispose of the concerned cases      at the earliest<\/p>\n
    and in any event within six months from the receipt of the<\/p>\n
    writ. It is clarified that nothing in the aforesaid order<\/p>\n
    including dismissal of the present applications should be<\/p>\n
    construed as an opinion expressed by this Court regarding<\/p>\n
    the merits of the matter pending before the lower Court.\n<\/p>\n
    Registry to also send forthwith the R. & P to the concerned<\/p>\n
    Court.\n<\/p>\n
                                      JUDGE<\/p>\n
    26.       The learned counsel for the applicant urges that<\/p>\n
    the proceedings in the lower Court are stayed during the<\/p>\n
    pendency of these proceedings for the last about one year.\n<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:12:44 :::<\/span>
\n                                  26<\/span><\/p>\n
    The said stay may be continued for a period of four weeks<\/p>\n
    for enabling the applicant to approach the Apex Court. The<\/p>\n
    said request   is opposed by the learned counsel         for the<\/p>\n
    non-applicants on the count of the criminal cases instituted<\/p>\n
    in the year 2003 for recovery of an amount of about Rs. 3<\/p>\n
    lacs in each case having remained pending due to the<\/p>\n
    conduct of an applicant in filing the proceedings in the<\/p>\n
    higher Courts and not appearing at the time of hearing.\n<\/p>\n
    The learned counsel thus urged that the said cases being<\/p>\n
    filed for the offences under Section 138 of the Negotiable<\/p>\n
    Instruments Act same deserves to be disposed of at the<\/p>\n
    earliest and hence granting of stay as prayed would be<\/p>\n
    resulting in causing serious prejudice to the non-applicants.\n<\/p>\n
    Having regard to the reasons because of which this Court<\/p>\n
    has already given an order for expediting the proceedings<\/p>\n
    in the trial Court and having regard to the conduct of the<\/p>\n
    applicant of not complying with the directions given in said<\/p>\n
    order dated 21.4.2008, the request made for staying the<\/p>\n
    effect and operation of the order and\/or for continuing the<\/p>\n
    stay deserves to be and hence stands rejected.\n<\/p>\n
                                      JUDGE<\/p>\n
                                      …\n<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:12:44 :::<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Hari Govind Hatwar vs The State Of Maharashtra on 9 October, 2009 Bench: P. D. Kode 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CRIMINAL APPLICATION NO. 2918\/2008 with CRIMINAL APPLICATION NO. 2919\/2008 with CRIMINAL APPLICATION NO. 2920\/2008 with CRIMINAL APPLICATION NO. 2921\/2008 with CRIMINAL APPLICATION NO. […]<\/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-241767","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nHari Govind Hatwar vs The State Of Maharashtra on 9 October, 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\/hari-govind-hatwar-vs-the-state-of-maharashtra-on-9-october-2009-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Hari Govind Hatwar vs The State Of Maharashtra on 9 October, 2009 - 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