S.B.SHUKRE, J. - (1.) Rule. Heard forthwith by consent of parties.
(2.) Petitioners in Criminal WP No. 140 of 2017 are accused nos. 2 to 4 while petitioner in Criminal WP No. 141 of 2017 is accused no. 1 in Regular Criminal Case No. 762 of 2007 filed by the respondent before the learned Magistrate. Basically, what is challenged in this writ petition is the order passed on 1.10.2016 by the Judicial Magistrate, FC, Court No. 2, Nagpur on the ground that this order of issuance of process as against the present petitioners could not have been passed when respondent (original complainant) has not complied with the order passed by the trial Court directing issuance of summons to these petitioners on 25.6.2008.
(3.) Shri Pankaj Dube, learned counsel for the petitioners submits that the order passed on 25.6.2008 is an order of issuance of process to these petitioners and it is a conditional order made subject to payment of process fees. He further submits that as per subsection (4) of Section 204 of the Code of Criminal Procedure, if the process fees are not paid within the reasonable time and this reasonable time is between the date on which such an order is passed and the next date fixed in the matter, the learned Magistrate must dismiss the complaint. He placed his reliance upon Rajaram v. Sundram and ors reported in 1995 Cri. L. J. 3418. He further submits that as process fees were not paid at all, the learned Magistrate should have dismissed the complaint and ought not to have passed order of issuance of process on 1.10.2016 below exhibit 1. According to learned counsel for the respondent, the ground of challenge is untenable for the reason that there is no order as such passed by the trial Court on 25.6.2008. He points out that the so called order is a noting taken in the order sheet which is signed by the Presiding Officer, but it would not amount to any order of issuance of process in absence actual and separate order passed in the matter.;