HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/judgments/UVB/apea444.11.odt 1/5 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. CRIMINAL APPLICATION (APPA) NO. 511 OF 2011 IN CRIMINAL APPEAL NO. 444 OF 2011 Prakash s/o Budha Balbudhe aged about 40 yrs., Occp. Agriculturist, r/o Somalpur, Tah. Arjuni (Morgaon), District - Gondia. :: APPELLANT -: Versus :- Dinesh s/o Baburao Madavi, aged 50 yrs., r/o Plot No.11-A, Utkarsha Bungalow, Tilak Nagar, Near Office of Additional Commissioner, Adiwasi Mahamandal, Nagpur, Police Station, Ambazari, Nagpur. :: RESPONDENT ...................................................................................... Mr. Anup Dhore, Advocate for the applicant. Mr. R. M. Pande, Adv. H/f Mr. S. P. Bhandarkar, Adv. for respondent. ................................................................................................... CORAM: U. V. BAKRE, J.
DATED : 20TH SEPT., 2011
J U D G ME N T
Heard.
2. This is an application for grant of leave to file appeal against
order dated 7/6/2011 passed by the learned Judicial Magistrate, First
Class, Arjuni (Morgaon) in Misc. Criminal Case No. 547 of 2007,
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whereby the complaint filed by the applicant-appellant under Section
138 of the Negotiable Instruments Act came to be dismissed under
Section 256 of the Code of Criminal Procedure on account of absence of
the complainant and his Advocate and for not taking steps for a long
time for securing the presence of the accused.
3. Perused the copy of the complaint and the impugned order.
4. The impugned order, as argued by the learned Advocate for
the applicant, is not on merit but is an order of dismissal for default.
5. Considering that this is a technical dismissal under Section
256 Cri.P.C., leave to file appeal against the impugned order is granted.
Appeal be registered and numbered, accordingly.
6. Admit.
7. Mr. R. M. Pande, learned Advocate waives service of notice
for sole respondent, after admission.
8. With the consent of learned Counsel for the parties, the
appeal is taken up for final hearing.
9. It is seen that the complaint under Sections 138 and 142 of
the Negotiable Instruments Act was filed by the complainant in respect
of the cheque of an amount of Rs.3,20,000/-. Process was issued by the
learned Judicial Magistrate, First Class. The respondent had initially
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appeared and had furnished the bail. However, it appears that the
respondent-accused subsequently started remaining absent and as per
the request of the appellant, initially bailable warrant was issued and
thereafter, the appellant had applied for issuing Non Bailable Warrant
against the accused. It is further seen that the appellant had paid the
process fee for issuance of Non Bailable Warrant but, since the report of
the concerned police station regarding service/non service of the
bailable warrant was not received by the Court, Non Bailable Warrant
was not issued. Subsequently, the complain t was transferred from
regular Court to the morning Court at Arjuni (Morgaon) and on
7/6/2011, since the complainant and his Advocate was absent when
the matter was called out, the complaint was dismissed.
10. The learned Counsel for the complainant showed his
bonafides by appearing before the said learned J.M.F.C. on the day of
dismissal itself and praying for setting aside the said order of dismissal.
There is no provision for the learned J.M.F.C. to set aside its own order
of dismissal.
11. Shri Dhore, learned Advocate for the appellant has placed
reliance upon the ruling in the case of Murlidhar s/o Harkisandas
Manwani Vs. Shri Sharangdhar s/o Ramlal Lohar reported in 2011
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ALL MR (Cri) 2198, which is based on similar situation. In the case
supra, the learned Single Judge of Aurangabad Bench of this Court has
held that principles of natural justice require that an opportunity be
given to the complainant to prosecute the complaint on its own merits,
however, by simultaneously compensating the accused due to
inconvenience caused to him, by awarding reasonable costs. Learned
Advocate Shri Dhore has also relied upon a decision of the same learned
Single Judge of Aurangabad Bench of this Court in the case of Shri
Pratap s/o Gopaldas Talreja Vs. Shri Bhagwandas s/o Jehumal Matani
reported in 2011 ALL MR (Cri) 2192, wherein also it has been held
that the principles of natural justice require that opportunity be given to
the complainant to prosecute the complaint on its own merits as well as
opportunity needs to be given to the accused also to contest the
complaint on merit. In the case supra also, the same was done by
awarding the costs to the accused.
12. Considering the fact that there was actually no absence of
the learned Counsel for the complainant on 7/6/2011, but there was
delay in appearance, I am of the view that the principles of natural
justice require that opportunity be given to the complainant to fight out
his case on merits. No prejudice would be caused to the respondent-
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accused. No doubt, inconvenience has been caused which can be made
good by awarding the costs.
13. In the result, the present appeal is allowed. The impugned
order dated 7/6/2011 is quashed and set aside. The matter is remitted
back to the trial Magistrate. Parties to appear before the trial Magistrate
on 5/10/2011, in the morning session. The trial Magistrate shall decide
the matter on its own merits, afresh.
14.
The appellant shall pay Rs.2,500/- (Rupees two thousand
five hundred only) as costs to the respondent to be deposited before the
trial Court, which shall be a condition precedent to be complied with on
or before 5/10/2011.
14. The application as well as appeal stand disposed of
accordingly.
JUDGE
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