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