1. The present Special Criminal Application under Article 227 of the Constitution of India has been preferred by the petitioner-original complainant to quash and set aside the impugned order dated 26/03/2008 passed by the learned 4th Joint Judicial Magistrate First Class, Ahmedabad (Rural) in Criminal Case No. 33914/2007 by which the learned Magistrate has dismissed the said Complaint solely on the ground that the same was barred by limitation as provided under Section 142(b) of the Negotiable Instruments Act.
2. Shri Y.N. Oza, learned Senior advocate has appeared on behalf of the petitioner-original complainant and Shri S.V. Raju, learned Senior advocate has appeared with Shri Vimal M. Patel, learned advocate appearing on behalf of respondent no. 1- original accused.
3. Number of submissions have been made by the learned Counsel appearing on behalf of the respective parties. However, in the midst of the arguments, the learned Counsel appearing on behalf of respondent no. 1 has stated at the bar, under instructions from his client, that he has no objection if the impugned order passed by the learned Judicial Magistrate dismissing the Complaint is quashed and set aside and he does not invite any further reasoned order while quashing and setting aside the impugned order passed by the learned Judicial Magistrate First Class, Ahmedabad (Rural). However, he has requested to make suitable observation that the same shall be without prejudice to the rights and contentions of respondent no. 1-original accused on merits as well as without prejudice to his rights to prefer an appropriate application for quashing under Section 482 of the Code of Criminal Procedure or under Article 226 of the Constitution of India praying to quash and set aside the said criminal proceedings on merits (except the question of limitation in filing the Complaint.)
4. Shri Y.N. Oza, learned Counsel appearing on behalf of the petitioner-original complainant has no objection in making suitable observation as requested by Shri S.V. Raju, learned Counsel appearing on behalf of respondent no. 1 recorded hereinabove that it will not be open for respondent no. 1 to contend that the said Complaint was barred by limitation as provided under Section 142(b) of the Negotiable Instruments Act.
5. In view of the above broad consensus between the learned Counsel appearing on behalf of the respective parties recorded hereinabove and the stand taken by them, under instructions from their respective clients, the impugned order dated 26/03/2008 passed by the learned 4th Joint Judicial Magistrate First Class, Ahmedabad (Rural) in Criminal Case No. 33914/2007 dismissing the said Complaint on the ground of limitation is hereby quashed and set aside and Criminal Case No. 33914/2007 is hereby ordered to be restored to file by the learned Magistrate. However, it is also observed that the aforesaid shall be without prejudice to the rights and contentions of respondent no. 1-original accused on merits and also without prejudice to his rights and contentions to submit an appropriate application for quashing criminal proceedings under Section 482 of the Code of Criminal Procedure and/or under Article 226 of the Constitution of India. As and when such proceedings are initiated the same be considered in accordance with law and on its own merits. However, it is also clarified and as agreed by the learned Counsel appearing on behalf of respondent no. 1-original accused that it will not be open for respondent no. 1 to contend that the application was barred by limitation under Section 142(b) of the Negotiable Instruments Act and all other contentions and the rights, which might be available to the respective parties, are kept open, which be considered in accordance with law and on its merits. Rule is made absolute to the aforesaid extent.
(M.R. SHAH, J.) siji