Judgment:
Oral Judgment:
1. Even though, this Court has marked the absence of the counsel for the applicant on 24.8.2016 and adjourned the case for today as last chance, counsel for the applicant is not present even today. Learned counsel for respondent is also absent.
2. Being aggrieved by the Judgment and order dated 28.2.2005 passed by the learned Adhoc Additional Sessions Judge, Nilanga, District Latur in Criminal Revision Application No.47/2003, the original accused has filed present Criminal Application.
3. Brief facts, giving rise to the present criminal application are as follows :-
The respondent-original complainant had filed a criminal case bearing STCC No.814/1998 before the Judicial Magistrate First Class, Nilanga against the petitioner for having committed an offence punishable under section 138 of the Negotiable Instruments Act, 1881. The Judicial Magistrate First Class, Nilanga on 27.10.1998 took cognizance of the complaint and issued process against the petitioner-accused. The learned Magistrate by the same order has also issued a show cause notice to the petitioner-accused mentioning therein as to why delay occurred in lodging the complaint should not be condoned as prayed by the complainant. The learned 2nd Judicial Magistrate First Class by order dated 15.9.2003 dismissed the said complaint solely on the ground that there is a delay for issuing notice as contemplated under section 138(b) of the Negotiable Instruments Act and as such, there is delay for filing the complaint in terms of the provisions of Section 138 of the Negotiable Instruments Act. Being aggrieved by the same, the respondent-original complainant has preferred Criminal Revision No.47/2003 before the Sessions Court and the learned Adhoc Additional Sessions Judge, Nilanga District Latur by its impugned order dated 28.2.2005 in Criminal Revision Application No.47/2003 allowed the said Criminal Application and quashed and set aside the order passed by the Magistrate dated 15.9.2003 in STCC No.814/1998 and further directed to restore said case on the file of the Judicial Magistrate First Class, Nilanga with a specific direction that opportunity be given to the revisional petitioner therein to adduce evidence, in respect of his prayer of condoning the delay and decide the matter on merit in accordance with law after hearing both the parties. Being aggrieved by the same, the petitioner-original accused has approached this Court by filing present Criminal Application.
4. It appears from the order passed by the Judicial Magistrate First Class, Nilanga dated 27.10.1998 that the learned Magistrate has issued process against the accused pending the application for condonation of delay, however, by the same order also issued a show cause notice to the petitioner-accused as to why delay caused in lodging the complaint should not be condoned as prayed by the complainant. The learned Adhoc Additional Sessions Judge, Nilanga has allowed Criminal Revision Application on two grounds. Firstly, the Magistrate has no power to review or re-consider his own decision of issue process and secondly, that, the Magistrate by arbitrary order dated 15.9.2003 dismissed the complaint without giving an opportunity to the complainant to adduce evidence or to explain the delay occurred in lodging the complaint.
5. I do not find any fault in the impugned order passed by the Adhoc Additional Sessions Judge, Nilanga, District Latur dated 28.2.2005 in Criminal Revision No.47/2003. The learned Magistrate has issued process against the accused on the basis of allegations made in the complaint and at the same time also issued a show cause notice to the accused as to why delay caused in filing the complaint should not be condoned. The learned Magistrate then cannot review or re-consider his order so far as issuance of process against the petitioner-accused is concerned. The learned Adhoc Additional Sessions Judge, Nilanga, has, therefore, quashed and set aside the order passed by the learned Magistrate dated 15.9.2003 with the observations that said order came to be passed without giving an opportunity to lead evidence in respect of delay condonation application. It appears from the order passed by the Magistrate dated 15.9.2003 that such opportunity is not given to the respondent-original complainant. In view of this, I do not find any fault in the order passed by the learned Adhoc Additional Sessions Judge, Nilanga, directing the Magistrate to restore the case to its original number and further give an opportunity to the original complainant to adduce evidence in respect of his prayer for condonation of delay. There is no merit in this Criminal Application. Hence, following order.
ORDER
Criminal Application is hereby rejected. Rule discharged.