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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
CRIMINAL APPLICATION NO. 4775 OF 2010
Terna Shetkari Sahakari Sakhar
Karkhana Ltd., Ternanagar (Dhoki),
through Shri Sehshrao s/o Bhaurao Chalak,
age 57 years, occ. Service, r/o Ternanagar,
Tq. & Dist. Osmanabad. ...Applicant
ig (original complainant)
VERSUS
1 Anant s/o Laxman Ghogre,
age 39 years, occ. Contractor,
r/o Rajuri, Tq. & Dist. Osmanabad,
2 The State of Maharashtra ...Respondent
(No.1 orig. accused)
.....
Shri S.B.Ghute, advocate for applicant
Shri S.B.Rohile, advocate for respondent no.1
Shri S.G.Nandedkar, A.P.P. for respondent no.2
.....
CORAM : SHRIHARI P.DAVARE, J.
DATED : 8th April, 2011
ORAL JUDGMENT : -
1 Heard learned counsel for the respective parties.
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2 This is an application, preferred by the applicant (original
complainant), seeking leave to file appeal, challenging the order,
dated 20.9.2010, passed by the learned Judicial Magistrate, First
Class, Osmanabad, in S.C.C. No. 1079 of 2010, thereby dismissing
the said complaint under Section 256 of the Code of Criminal
Procedure, for want of prosecution and acquitting the accused for the
offence punishable under Section 138 of the Negotiable Instruments
Act.
3 Considering the contents of the application and after
considering the rival submissions advanced by the learned counsel
for the parties, since the dismissal of the complaint for want of
prosecution by order, dated 20.9.2010, is a technical dismissal under
Section 256 of the Code of Criminal Procedure and not on merits,
leave to file appeal granted. Present application be treated as
appeal.
4 Admit. Shri S.B.Rohile, learned counsel waives service of
notice for respondent no.1 (original accused) after admission.
5 With the consent of learned counsel for the parties,
appeal is taken up for final hearing.
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6 The appellant i.e. original complainant has filed S.C.C.
No. 1079 of 2001, dated 25.4.2001, against the respondent no.1
(original accused) under Section 138 of the Negotiable Instruments
Act and under Section 420 of the Indian Penal Code.
7 It is the contention of the appellant that the appellant is a
Cooperative Sugar Factory, registered under the Maharashtra
Cooperative Societies Act, 1960. The respondent is a Labour
Contractor, who had entered into an agreement with the complainant
to supply the labourers and transportation for crushing of the
sugarcane for the year 2000-01, and thereby obtained advance from
the complainant.
8 After verifying the accounts, it was found that amount of
Rs.30.893/- was due from the accused to the complainant. Hence,
the accused issued cheque No. 234374, dated 27.12.2000 for Rs.
30,893/- to the complainant towards the repayment of the said dues.
The complainant presented the said cheque for encashment purpose
through the Osmanabad District Central Cooperative Bank Ltd.,
Branch Terananagar. However, the said cheque was dishonoured
and returned unpaid with the endorsement, “Funds insufficient” on
1.3.2001. Hence, the complainant issued demand notice to the
accused on 12.3.2001 by Registered Post A.D. and called upon the
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accused to repay the amount of the cheque and said notice was
served upon the accused. However, despite service of said demand
notice, the accused failed to comply with the requisitions contained
therein. Hence, the complainant filed complaint before the learned
Judicial Magistrate, First Class, Osmanabad against the accused
under Section 138 of the Negotiable Instruments Act and under
Section 420 of the Indian Penal Code.
9 After perusal of the complaint and verification, the learned
Judicial Magistrate, First Class, Osmanabad issued process against
the accused under Section 138 of the Negotiable Instruments Act on
27.11.2001. Accordingly, the accused appeared therein. However,
on 20.9.2010, since the complainant and his advocate were absent,
but the accused was present, learned Judicial Magistrate, First
Class, Osmanabad dismissed the said complaint for want of
prosecution and acquitted the accused by passing the order to that
effect. Being aggrieved and dissatisfied by the said order, the
complainant has preferred the present appeal and prayed for
quashment thereof.
10 Learned counsel for the complainant submitted that on
some dates the complainant was present and on some dates he was
absent, but even the accused was also absent on some dates, and
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therefore, non-bailable warrant was required to be issued against
him to secure his presence. Learned counsel for the complainant
also canvassed that the dismissal of the complaint on 20.9.2010 is a
technical dismissal under Section 256 of the Code of Criminal
Procedure and the acquittal of the accused is also technical
acquittal, and therefore, opportunity needs to be given to the parties
to prosecute/contest the said complaint on its own merits, and hence,
the impugned order deserves to be quashed and set aside.
11 According to the complainant, the vital right of the
complainant in respect of dishonour of cheque is involved in the
complaint, and therefore also, same deserves to be restored to its
file, quashing and setting aside the impugned order, dated
20.9.2010.
12 Learned counsel for the complainant relied upon the
observations made by Hon’ble Supreme Court in the case of
Associated Cement Co. Ltd. Vs Keshvanand, reported at 1998 ALL
MR (Cri) 689 (S.C.), which are as follows :-
“18 Reading the Section in its entirety would
reveal that two constraints are imposed on the court
for exercising the power under the Section. First is, if
the court thinks that in a situation it is proper to
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adjourn the hearing then the Magistrate shall not
acquit the accused. Second is, when the Magistrate
considers that personal attendance of the
complainant is not necessary on that day the
Magistrate has the power to dispense with his
attendance and proceed with the case. When the
court notices that the complainant is absent on a
particular day the court must consider whether
personal attendance of the complainant is essential
on that day for the progress of the case and also
whether the situation does not justify the case being
adjourned to another date due to any other reason. If
the situation does not justify the case being adjourned
the court is free to dismiss the complaint and acquit
the accused. But if the presence of the complainant
on that day was quite unnecessary then resorting to
the step of axing down the complaint may not be a
proper exercise of the power envisaged in the section.
The discretion must therefore be exercised judicially
and fairly without impairing the cause of
administration of criminal justice. ”
13 Learned counsel for the accused countered the said argument
and opposed the present appeal vehemently and submitted that the
Summary Criminal Case filed by the complaint is very old matter i.e. of the
year 2001, but despite that position, the complainant remained absent
consistently, and therefore, the learned trial Judge rightly dismissed the
said complaint due to absence of the complainant on 20.9.2010. Learned
counsel for the accused also pointed out that the accused was present on
the said date i.e. 20.9.2010 i.e. the date of dismissal of complaint and the
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accused was acquitted of the charge levelled against him in accordance
with Section 256 of the Code of Criminal Procedure. Moreover, the
complainant has failed to plead and prove the sufficient ground by which
he was prevented to attend the court on the relevant day i.e. 20.9.2010,
and therefore, also present appeal is devoid of any merits, and hence,
submitted that the same be dismissed.
14 Learned counsel for the accused also canvassed that the copy
of Roznama, filed along with the present appeal, categorically makes it
clear that the complainant was absent on number of dates and ultimately
was absent on 20.9.2010, as well as no application was moved before the
learned Trial Judge for adjournment on the said date, and hence, the
learned Trial Judge rightly dismissed the said complaint and acquitted the
accused and no interference therein is called for in the appellate
jurisdiction.
15 Learned counsel for the respondent relied upon the judgment
of this court in the case of M/s Merchant @ Somji Agro Industries &
Investment (P) Ltd. Vs Mr. Brij Mehra & Anr., reported at 2003 ALL MR
(Cri) 2266, in which even leave to file appeal was refused, wherein it was
held that :-
“5 The present case was a case, which was to be
continued in view of Chapter XX of the Code of Criminal
Procedure. On the date when said complaint was
presented the present appellant was not the Director of
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the said Company. On the date when the said complaint
was dismissed, he was not present before the Court nor
lawyer of the complainant. Shri Shaikh has placed reliance
on the judgment of the Supreme Court in the matter of
Mohammed Azeem vs A Venkatesh and another (Supra),
but in that case, the absence was solitary one and
therefore, this Court thinks that the Supreme Court was
kind enough to give direction to the Magistrate to think
properly and not to dismiss such cases, keeping in view
the solitary absence of the complainant. But the present
case, is a different case. The ratio of the judgment of the
Supreme Court in Mohd. Azeem’s case (Supra) would not
be applicable to the present case. The Roznama shows
that on the occasion i.e. on 10.1.2002, 4.4.2002 and
7.9.2002 the complainant and his advocate were absent
and then last entry comes which shows that the complaint
was dismissed and the present respondents were
acquitted. ”
16 I have perused the complaint filed by the complainant in S.C.C.
No. 1079 of 2001 and the impugned order, dated 20.9.2010, passed by
the learned Trial Judge on the complaint, dated 25.4.2001, as well as the
order passed by the learned Judge on the said date in the Roznama, and
heard the submissions advanced by the learned counsel for the parties, as
well as perused the judicial pronouncements cited by the learned counsel
for the parties, carefully, and at the out set, it appears, from the copy of the
Roznama annexed with the present appeal, that the complainant as well
as the accused remained present on the various dates as well as
remained absent on the numerous dates. It also appears that due to
absence of accused, non-bailable warrant was required to be issued and
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re-issued against him to secure his presence before the court. However, it
further appears that the complainant remained absent consistently on
three dates prior to dismissal of the complaint i.e. on 20.9.2010. It also
appears that on the date of dismissal of the complaint i.e. 20.9.2010, the
complainant and his advocate remained absent, whereas the accused was
present when called out, and therefore, since the complainant remained
absent and since no application was moved for adjournment, the
complaint came to be dismissed for want of prosecution and the accused
stood acquitted, canceling his bail bond. Thus, apparently it is clear that
the said dismissal of the complaint on 20.9.2010 by the learned trial
Judge, due to absence of the complainant, is a technical dismissal under
Section 256 of the Code of Criminal Procedure and the said dismissal is
not on its own merits.
17 True it is, the complainant remained absent on three
consecutive dates preceding the date of dismissal of complaint i.e.
20.9.2010, and therefore, his complaint came to be dismissed on
20.9.2010 for want of prosecution, but the principles of natural justice
require that due opportunity be given to the parties to adduce/produce
their respective evidences before the court and matter be decided on its
own merits, and therefore, the impugned order, dated 20.9.2010 of
dismissal of complaint for want of prosecution deserves to be quashed and
set aside. However, simultaneously, appropriate costs are required to be
awarded to the accused while quashing and setting aside the impugned
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order, dated 20.9.2010. Moreover, the parties are also required tobe
directed to remain present on a specific date before the Trial Court, with
further direction that they shall not seek adjournment unless warranted
due to emergency, and the learned Trial Judge is also required to be
directed to decide the case, on its own merits, in accordance with law,
expeditiously, by allowing the present appeal.
18 In the result, present appeal is allowed and the impugned
order, dated 20.9.2010 dismissing the complaint of the complainant for
want of prosecution and acquitting the accused, stands quashed and set
aside and the matter is remitted back to the learned Trial Court, with
direction to decide it on its own merits, in accordance with law
expeditiously, and the complainant as well as the accused are directed to
remain present before the Trial Court on 2.5.2011 at 11.00 a.m. and the
parties are also directed not to seek adjournments unless warranted
emergently, and to cooperate with the court to decide the matter
expeditiously, subject to payment of costs of Rs.3,000/- by the
complainant to the accused on or before 2.5.2011 and present appeal
stands disposed of accordingly.
(SHRIHARI P. DAVARE, J.)
dbm/crap4775.10
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