1 Cri.A.4723.10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 4723 OF 2010
Rajendra Shaintilal Mistry,
Age: 49 years,Occupation :Service,
R/o Plot No.38, Anand-B Building,
Vidyanagar, Aurangabad. ...APPLICANT.
VERSUS
1. M/s Ajanta Printpack Industries,
Plot No. 44, MIDC Industrial Area,
Waluj, Auragabad.
2.
Mahendra Keshav Mahakal,
Partner for M/s Ajanta Printpack
Industries, Age : 33 years, Occup.
Business, R/o Plot No. 5, Warsha-
Bhavan, Bassayye Nagar,Aurangabad.
3. Ravindra Keshav Mahakal,
Partner for M/s Ajanta Printpack
Industries, Age : 35 years, Occup.
Business, R/o Plot No. 5, Warsha-
Bhavan, Bassayye Nagar,Aurangabad.
...RESPONDENTS.
...
Shri.Joydeep Chatterji, Advocate for Applicant
Shri.Pravin S.Patil,Advocate for Respondents.
...
CORAM: SHRIHARI P.DAVARE, J.
DATE : 07TH MARCH, 2011.
JUDGMENT :
1. Heard Mr. Chatarjee learned counsel for the
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applicant (Original Complainant) and Mr. Pravin S.
Patil, learned counsel for respondent Nos. 1 to 3.
2. This is an application preferred by the
applicant-appellant(Original complainant) seeking
leave to file an appeal challenging the order
dated 24th September, 2010 passed below Exh.1 in
S.C.C.No. 9491 of 2007, by the learned Judicial
Magistrate First Class-10, Aurangabad, thereby
dismissing the complaint filed by the complainant,
and acquitting the respondents-accused from the
charge under section 138 of the Negotiable
Instruments Act.
FACTUAL MATRIX CAN BE SUMMARISED AS FOLLOWS:
3. Appellant(original complainant) has filed
complaint bearing S.C.C.No. 9491 of 2007 on
17.12.2007, before learned Judicial Magistrate
First Class, Aurangabad against respondents
(Original Accused) under section 138 of the
Negotiable Instruments Act. Respondent NO.1 is
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partnership Firm and respondent Nos. 2 and 3 are
partners thereof, who are managing affairs of
respondent NO.1-Firm. Accordingly, Judicial
Magistrate First Class, Aurangabad issued summons
to respondent Nos. 1 to 3 and their presence was
secured on 18.01.2010, after issuance of Non
Bailable Warrants against them.
4. Thereafter, the matter was adjourned for
several times. It is alleged that on 18.06.2010,
learned counsel for the accused and accused
informed the learned Magistrate that the matter
would be settled and therefore, the case was
adjourned to 3rd July, 2010 and thereafter it was
adjourned to 07.08.2010 and on 24.09.2010.
However, on 24.09.2010 adjournment was sought by
the advocate of accused because accused was out of
station. Moreover, the complainant and his
advocate were also absent, and therefore, learned
trial Court passed order below Exh.1 and dismissed
the complaint and acquitted the respondents-
accused.
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5. Being aggrieved and dissatisfied with said
order dated 24.09.2010 complainant-applicant-
appellant preferred present application seeking
leave to file appeal assailing the said order.
6. It is canvassed that on 24.09.2010 accused
himself was absent. Application Exh.27 was filed
seeking his personal exemption and same was
granted. Therefore, it is submitted that although
the case was posted for evidence on that day, no
inconvenience would be caused to the accused since
he was absent. It is also submitted that under
such situation, action of dismissal of the
complaint is a harsh action and the matter could
have been postponed or deferred, since no
prejudice or hardship was caused to the accused as
he was absent. It was also argued on behalf of the
applicant that advocate for complainant could not
remain present on 24.09.2010, as he had gone to
New Delhi by railway at 13.40 hours on 24.09.2010
to appear for examination on 26.09.2010 for the
post of public Prosecutor in the CBI and although
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requested his junior to attend the case, due to
oversight his Junior did not attend the said case.
7. Learned counsel for the respondents opposed
the present application vehemently, and submitted
that no ground has been put forth for absence of
complainant on 24.09.2009. It is also submitted
that since the complainant remained absent for
three times earlier, as well as he remained absent
on 24.09.2010, learned trial Court rightly
dismissed the complaint and acquitted the accused
under section 138 of the Negotiable Instruments
Act and applicant is not entitled for leave to
file appeal against the said order.
8. Considering the rival submissions, at the
outset, it is apparent that dismissal of the
complaint filed by the complainant, by order dated
24.09.2010, passed by the learned trial Court, is
apparently technical dismissal due to absence of
complainant and his advocate, and the said
complaint, admittedly, has not been dismissed on
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merits. Principles of natural justice require
that opportunity be given to the parties to
prosecute, as well as to contest the matter, on
its own merits. Therefore, leave is required to be
granted to the applicant to file appeal
challenging the impugned order dated 24.09.2010 in
the interest of justice.
9. Accordingly, present application is allowed.
Leave to file appeal is granted and present
application itself is treated as Appeal.
10. Admit the appeal, learned counsel for
respondent waives the service of notice after
admission.
11. Accordingly, with the consent of learned
counsel for respective parties, appeal is taken up
for final hearing.
12. Heard learned counsel for the parties.
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13. Considering the facts and circumstances, and
after considering rival submissions advanced by
the learned counsel for the parties, as mentioned
herein above, it is apparent that dismissal of the
complaint by order dated 24.09.2010, passed by the
trial Court, in the instant case is apparently
technical dismissal due to absence of the
complainant and his advocate, but the said
dismissal is not on merits, hence I am of the view
that fair opportunity is required to be given to
the applicant-appellant, therefore, the impugned
order dated 24.09.2010 deserves to be quashed and
set aside and matter is required to be remitted
back to the trial Court to decide it on its own
merits, in accordance with law, with directions to
parties to remain present before trial Court on
specified date, subject to saddling reasonable
costs upon the applicant.
14. Accordingly, present appeal is allowed,
subject to payment of costs of Rs. 5000/-(Rupees
Five Thousand), by the applicant-appellant-
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complainant to the respondent-Accused before lower
Court, within a period of two weeks from today,
and the impugned order dated 24.09.2010 passed by
the Judicial Magistrate First Class – 10,
Aurangabad, in S.C.C.No. 9491 of 2007 stands
quashed and set aside and the matter is remitted
back to the trial Court, with direction to decide
it on its own merits afresh, in accordance with
law, after giving due opportunity to the parties
to adduce/produce their respective evidences. The
parties are directed to remain present before the
trial Court on 6th April, 2011 at 11.00 a.m.
15. Appeal stands disposed of accordingly.
Sd/-
[SHRIHARI P.DAVARE, J.]
MTK
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