Prakash vs Dinesh on 20 September, 2011

0
188
Bombay High Court
Prakash vs Dinesh on 20 September, 2011
Bench: U.V. Bakre
     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,

::: Downloaded on – 09/06/2013 17:45:17 :::
HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
/home/lichade/judgments/UVB/apea444.11.odt 2/5

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

::: Downloaded on – 09/06/2013 17:45:17 :::
HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
/home/lichade/judgments/UVB/apea444.11.odt 3/5

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

::: Downloaded on – 09/06/2013 17:45:17 :::
HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
/home/lichade/judgments/UVB/apea444.11.odt 4/5

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-

::: Downloaded on – 09/06/2013 17:45:17 :::

HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
/home/lichade/judgments/UVB/apea444.11.odt 5/5

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

wwl

::: Downloaded on – 09/06/2013 17:45:17 :::

LEAVE A REPLY

Please enter your comment!
Please enter your name here

* Copy This Password *

* Type Or Paste Password Here *