{"id":86978,"date":"2011-04-08T00:00:00","date_gmt":"2011-04-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/karkhana-ltd-vs-anant-on-8-april-2011"},"modified":"2015-10-20T18:35:39","modified_gmt":"2015-10-20T13:05:39","slug":"karkhana-ltd-vs-anant-on-8-april-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/karkhana-ltd-vs-anant-on-8-april-2011","title":{"rendered":"Karkhana Ltd. vs Anant on 8 April, 2011"},"content":{"rendered":"
Bombay High Court<\/div>\n
Karkhana Ltd. vs Anant on 8 April, 2011<\/div>\n
Bench: Shrihari P. Davare<\/div>\n
                                           1                           crap4775.10\n\n\n\n\n                                                                                \n            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,\n                  AURANGABAD BENCH, AURANGABAD\n\n\n\n\n                                                        \n                 CRIMINAL APPLICATION NO.  4775 OF 2010\n\n    Terna Shetkari Sahakari Sakhar\n\n\n\n\n                                                       \n    Karkhana Ltd., Ternanagar (Dhoki),\n    through Shri Sehshrao s\/o Bhaurao Chalak,\n    age 57 years, occ. Service, r\/o Ternanagar,\n\n\n\n\n                                          \n    Tq. & Dist. Osmanabad.                                         ...Applicant\n                          ig                             (original complainant)\n                        \n                VERSUS\n                        \n    1            Anant s\/o Laxman Ghogre,\n                 age 39 years, occ. Contractor,\n                 r\/o Rajuri, Tq. & Dist. Osmanabad,\n      \n\n\n    2            The State of Maharashtra                    ...Respondent\n   \n\n\n\n                                                        (No.1 orig. accused)\n\n                                        .....\n    Shri  S.B.Ghute, advocate for applicant\n\n\n\n\n\n    Shri S.B.Rohile, advocate for respondent no.1\n    Shri  S.G.Nandedkar, A.P.P.  for respondent no.2\n                                        .....\n\n\n\n\n\n                              CORAM  :    SHRIHARI  P.DAVARE, J.\n<\/pre>\n
                              DATED   :    8th  April, 2011\n\n\n    ORAL JUDGMENT  : -\n\n\n\n    1            Heard learned counsel for the respective parties. \n\n\n\n\n                                                        ::: Downloaded on - 09\/06\/2013 17:10:47 :::<\/span>\n                                              2                           crap4775.10\n\n\n\n\n                                                                                  \n    2            This is an application, preferred by the applicant (original \n\n<\/pre>\n
    complainant),   seeking   leave   to   file   appeal,   challenging   the   order, <\/p>\n
    dated   20.9.2010,   passed   by   the   learned   Judicial   Magistrate,   First <\/p>\n
    Class, Osmanabad, in S.C.C. No. 1079 of 2010, thereby dismissing <\/p>\n
    the   said   complaint   under   Section   256   of   the   Code   of   Criminal <\/p>\n
    Procedure, for want of prosecution and acquitting the accused for the <\/p>\n
    offence punishable under Section 138 of the Negotiable Instruments <\/p>\n
    Act.\n<\/p>\n
    3            Considering   the   contents   of   the   application   and   after <\/p>\n
    considering the rival submissions advanced by the learned counsel <\/p>\n
    for   the   parties,   since   the   dismissal   of   the   complaint   for   want   of <\/p>\n
    prosecution by order, dated 20.9.2010, is a technical dismissal under <\/p>\n
    Section 256 of the Code of Criminal Procedure and not on merits, <\/p>\n
    leave   to   file   appeal   granted.     Present   application   be   treated   as <\/p>\n
    appeal.\n<\/p>\n
    4            Admit.  Shri S.B.Rohile, learned counsel waives service of <\/p>\n
    notice for respondent no.1 (original accused) after admission.\n<\/p>\n
    5            With   the   consent   of   learned   counsel   for   the   parties, <\/p>\n
    appeal is taken up for final hearing.\n<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 17:10:47 :::<\/span><\/p>\n
                                           3                           crap4775.10\n\n\n\n\n                                                                               \n    6           The   appellant   i.e.   original   complainant   has   filed   S.C.C. \n\n<\/pre>\n
    No.   1079   of   2001,   dated   25.4.2001,   against   the   respondent   no.1 <\/p>\n
    (original accused) under Section 138 of the Negotiable Instruments <\/p>\n
    Act and under Section 420 of the Indian Penal Code.\n<\/p>\n
    7           It is the contention of the appellant that the appellant is a <\/p>\n
    Cooperative   Sugar   Factory,   registered   under   the     Maharashtra <\/p>\n
    Cooperative   Societies   Act,   1960.   The   respondent   is   a   Labour <\/p>\n
    Contractor, who had entered into an agreement with the complainant <\/p>\n
    to   supply   the   labourers   and   transportation   for   crushing   of   the <\/p>\n
    sugarcane for the year 2000-01, and thereby obtained advance from <\/p>\n
    the complainant.\n<\/p>\n
    8           After verifying the accounts, it was found that amount of <\/p>\n
    Rs.30.893\/- was due from the accused to the complainant.   Hence, <\/p>\n
    the accused issued cheque No. 234374, dated 27.12.2000 for Rs.\n<\/p>\n
    30,893\/- to the complainant towards the repayment of the said dues.\n<\/p>\n
    The complainant presented the said cheque for encashment purpose <\/p>\n
    through   the   Osmanabad   District   Central   Cooperative   Bank   Ltd., <\/p>\n
    Branch Terananagar.   However, the said cheque was dishonoured <\/p>\n
    and returned   unpaid with the endorsement, “Funds insufficient” on <\/p>\n
    1.3.2001.   Hence,   the   complainant   issued   demand   notice   to   the <\/p>\n
    accused on 12.3.2001 by Registered Post A.D. and called upon the <\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 17:10:47 :::<\/span>
\n                                            4                           crap4775.10<\/p>\n
    accused   to   repay   the   amount   of   the   cheque   and   said   notice   was <\/p>\n
    served upon the accused. However, despite service of said demand <\/p>\n
    notice, the accused failed to comply with the requisitions contained <\/p>\n
    therein. Hence,   the complainant filed complaint before the learned <\/p>\n
    Judicial   Magistrate,   First   Class,   Osmanabad   against   the   accused <\/p>\n
    under   Section   138   of   the   Negotiable   Instruments   Act   and   under <\/p>\n
    Section 420 of the Indian Penal Code.\n<\/p>\n
    9            After perusal of the complaint and verification, the learned <\/p>\n
    Judicial Magistrate, First Class, Osmanabad issued process against <\/p>\n
    the accused under Section 138 of the Negotiable Instruments Act on <\/p>\n
    27.11.2001.   Accordingly,   the   accused   appeared   therein.   However, <\/p>\n
    on 20.9.2010, since the complainant and his advocate were absent, <\/p>\n
    but   the   accused   was   present,   learned   Judicial   Magistrate,   First <\/p>\n
    Class,   Osmanabad   dismissed   the   said   complaint   for   want   of <\/p>\n
    prosecution and acquitted the accused by passing the order to that <\/p>\n
    effect.   Being   aggrieved   and   dissatisfied   by   the   said   order,   the <\/p>\n
    complainant   has   preferred   the   present   appeal   and   prayed   for <\/p>\n
    quashment thereof.\n<\/p>\n
    10           Learned   counsel   for   the   complainant   submitted   that   on <\/p>\n
    some dates the complainant was present and on some dates he was <\/p>\n
    absent, but  even the accused was also absent on some dates, and <\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 17:10:47 :::<\/span>
\n                                               5                            crap4775.10<\/p>\n
    therefore,   non-bailable   warrant   was   required   to   be   issued   against <\/p>\n
    him to secure his presence.     Learned counsel for the complainant <\/p>\n
    also canvassed that the dismissal of the complaint on 20.9.2010 is a <\/p>\n
    technical   dismissal   under   Section   256   of   the   Code   of   Criminal <\/p>\n
    Procedure   and   the   acquittal   of     the   accused     is   also   technical <\/p>\n
    acquittal, and therefore, opportunity needs to be given to the parties <\/p>\n
    to prosecute\/contest the said complaint on its own merits, and hence, <\/p>\n
    the impugned order deserves to be quashed and set aside.\n<\/p>\n
    11           According   to   the   complainant,   the   vital   right   of   the <\/p>\n
    complainant   in   respect   of   dishonour   of   cheque   is   involved   in   the <\/p>\n
    complaint, and therefore also, same deserves to be restored to its <\/p>\n
    file,   quashing   and   setting   aside   the   impugned   order,   dated <\/p>\n
    20.9.2010.\n<\/p>\n
    12           Learned   counsel   for   the   complainant   relied   upon   the <\/p>\n
    observations   made   by   Hon’ble   Supreme   Court     in   the   case   of <\/p>\n
    Associated Cement Co. Ltd. Vs Keshvanand, reported at  1998 ALL <\/p>\n
    MR (Cri) 689 (S.C.), which are as follows :-\n<\/p>\n
                 “18           Reading   the   Section   in   its   entirety   would
\n                 reveal that two constraints are imposed on the court
\n                 for exercising the power under the Section. First is, if
\n                 the   court   thinks   that   in   a   situation   it   is   proper   to <\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 17:10:47 :::<\/span>
\n                                              6                           crap4775.10<\/p>\n
                 adjourn   the   hearing   then   the   Magistrate   shall   not
\n                 acquit the accused. Second is, when the Magistrate <\/p>\n
                 considers   that   personal   attendance   of   the
\n                 complainant   is   not   necessary   on   that   day   the
\n                 Magistrate   has   the   power   to   dispense   with   his
\n                 attendance   and   proceed   with   the   case.     When   the <\/p>\n
                 court   notices   that   the   complainant   is   absent   on   a
\n                 particular   day   the   court   must   consider   whether
\n                 personal   attendance  of   the   complainant   is   essential <\/p>\n
                 on   that   day   for   the   progress   of   the   case   and   also
\n                 whether the situation does not justify the case being <\/p>\n
                 adjourned to another date due to any other reason. If
\n                 the situation does not justify the case being adjourned <\/p>\n
                 the court is free to dismiss the complaint and acquit
\n                 the accused.  But if the presence of the  complainant
\n                 on that day was quite unnecessary then  resorting to
\n                 the step of axing down the complaint may not be a <\/p>\n
                 proper exercise of the power envisaged in the section.\n<\/p>\n
                 The discretion must therefore be exercised judicially
\n                 and   fairly   without   impairing   the   cause   of
\n                 administration of criminal justice. ”\n<\/p>\n
    13           Learned counsel for the accused countered the said argument <\/p>\n
    and   opposed   the   present   appeal   vehemently   and   submitted   that   the <\/p>\n
    Summary Criminal Case filed by the complaint is very old matter i.e. of the <\/p>\n
    year   2001,   but   despite   that   position,   the   complainant   remained   absent <\/p>\n
    consistently, and therefore, the learned trial Judge rightly dismissed the <\/p>\n
    said complaint due to absence of the complainant on 20.9.2010.  Learned <\/p>\n
    counsel for the accused also pointed out that the accused was  present on <\/p>\n
    the said date i.e. 20.9.2010 i.e. the date of dismissal of complaint and the <\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 17:10:47 :::<\/span>
\n                                                7                            crap4775.10<\/p>\n
    accused was acquitted of the charge levelled against him in accordance <\/p>\n
    with   Section   256   of   the   Code   of   Criminal   Procedure.   Moreover,   the <\/p>\n
    complainant has failed to plead and prove the sufficient ground by which <\/p>\n
    he was prevented to attend the court on the relevant day i.e. 20.9.2010, <\/p>\n
    and  therefore, also present appeal  is devoid of any  merits,  and  hence, <\/p>\n
    submitted that the same be dismissed.\n<\/p>\n
    14             Learned counsel for the accused also canvassed that the copy <\/p>\n
    of Roznama, filed along with the present appeal, categorically makes it <\/p>\n
    clear that the complainant was absent on number of dates and ultimately <\/p>\n
    was absent on 20.9.2010, as well as no application was moved before the <\/p>\n
    learned   Trial   Judge   for   adjournment   on   the   said   date,   and   hence,   the <\/p>\n
    learned Trial Judge rightly dismissed the said complaint and acquitted the <\/p>\n
    accused   and   no   interference   therein   is   called   for   in   the   appellate <\/p>\n
    jurisdiction.\n<\/p>\n
    15             Learned counsel for the respondent relied upon the judgment <\/p>\n
    of   this   court   in   the   case   of  M\/s   Merchant   @   Somji   Agro   Industries   & <\/p>\n
    Investment (P) Ltd.   Vs Mr. Brij Mehra & Anr., reported at  2003 ALL MR <\/p>\n
    (Cri) 2266, in which even leave to file appeal was refused, wherein it was <\/p>\n
    held that :-\n<\/p>\n
                   “5          The present case was a case, which was to be
\n                   continued in view of Chapter XX of the Code of Criminal
\n                   Procedure.     On   the   date   when   said   complaint   was
\n                   presented  the  present appellant was not the  Director of <\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 17:10:47 :::<\/span>
\n                                                8                            crap4775.10<\/p>\n
                 the said Company. On the  date when the said complaint
\n                 was dismissed, he was not present before the Court nor <\/p>\n
                 lawyer of the complainant. Shri Shaikh has placed reliance
\n                 on the  judgment of the  Supreme  Court in  the  matter  of
\n                 Mohammed Azeem vs A Venkatesh and another (Supra),
\n                 but   in   that   case,   the   absence     was   solitary   one   and <\/p>\n
                 therefore, this Court thinks that the Supreme Court was
\n                 kind   enough   to   give   direction   to   the   Magistrate   to   think
\n                 properly and not to dismiss such cases,   keeping in view
\n                 the solitary absence of the complainant.   But the present <\/p>\n
                 case, is a different case. The  ratio of the judgment of the
\n                 Supreme Court in Mohd. Azeem’s case (Supra) would not <\/p>\n
                 be applicable to the present case.   The Roznama shows
\n                 that   on   the   occasion   i.e.   on   10.1.2002,   4.4.2002   and <\/p>\n
                 7.9.2002 the complainant and his advocate were absent
\n                 and then last entry comes which shows that the complaint
\n                 was   dismissed   and   the   present   respondents   were
\n                 acquitted. ”\n<\/p>\n
    16            I have perused the complaint filed by the complainant in S.C.C.\n<\/p>\n
    No. 1079 of 2001 and the   impugned order, dated 20.9.2010, passed by <\/p>\n
    the learned Trial Judge on the complaint, dated 25.4.2001, as well as the <\/p>\n
    order passed by the learned Judge on the said date  in the Roznama, and <\/p>\n
    heard the submissions advanced by the learned counsel for the parties, as <\/p>\n
    well as perused the judicial pronouncements cited by the learned counsel <\/p>\n
    for the parties, carefully, and at the out set, it appears, from the copy of the <\/p>\n
    Roznama annexed with the present appeal, that the complainant as well <\/p>\n
    as   the   accused   remained   present   on   the   various   dates   as   well   as <\/p>\n
    remained   absent   on   the   numerous   dates.     It   also   appears   that   due   to <\/p>\n
    absence of accused, non-bailable warrant was required to be issued and <\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 17:10:47 :::<\/span>
\n                                                9                            crap4775.10<\/p>\n
    re-issued against him to secure his presence before the court.  However, it <\/p>\n
    further   appears   that   the   complainant   remained   absent   consistently   on <\/p>\n
    three dates prior to dismissal of the complaint i.e. on 20.9.2010.   It also <\/p>\n
    appears that on the date of dismissal of the complaint i.e. 20.9.2010, the <\/p>\n
    complainant and his advocate remained absent, whereas the accused was <\/p>\n
    present when called out, and therefore, since the complainant remained <\/p>\n
    absent   and   since   no   application   was   moved   for   adjournment,   the <\/p>\n
    complaint came to be dismissed for want of prosecution and the accused <\/p>\n
    stood acquitted, canceling his bail bond.  Thus, apparently it is clear that <\/p>\n
    the   said   dismissal   of   the   complaint   on   20.9.2010   by   the   learned   trial <\/p>\n
    Judge, due to absence of the complainant, is a technical dismissal under <\/p>\n
    Section 256 of the Code of Criminal Procedure and the said dismissal is <\/p>\n
    not on its own merits.\n<\/p>\n
    17            True   it   is,     the   complainant   remained   absent   on   three <\/p>\n
    consecutive   dates   preceding   the   date   of   dismissal   of   complaint   i.e. <\/p>\n
    20.9.2010,   and   therefore,   his   complaint   came   to   be   dismissed   on <\/p>\n
    20.9.2010   for   want   of   prosecution,   but   the   principles   of   natural   justice <\/p>\n
    require   that   due   opportunity   be   given   to   the   parties   to   adduce\/produce <\/p>\n
    their respective evidences before the court and matter be decided on its <\/p>\n
    own   merits,   and   therefore,   the   impugned   order,   dated   20.9.2010   of <\/p>\n
    dismissal of complaint for want of prosecution deserves to be quashed and <\/p>\n
    set aside. However, simultaneously, appropriate costs are required to be <\/p>\n
    awarded to the  accused while   quashing and setting aside the  impugned <\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 17:10:47 :::<\/span>
\n                                                10                           crap4775.10<\/p>\n
    order,   dated   20.9.2010.   Moreover,   the   parties   are   also   required   tobe <\/p>\n
    directed to remain present on a specific date before the Trial Court, with <\/p>\n
    further  direction   that   they  shall   not   seek   adjournment   unless  warranted <\/p>\n
    due   to   emergency,   and   the   learned   Trial   Judge   is   also   required   to   be <\/p>\n
    directed to decide the case, on its own merits, in accordance with law, <\/p>\n
    expeditiously, by allowing the present appeal.\n<\/p>\n
    18            In   the   result,   present   appeal   is   allowed   and   the   impugned <\/p>\n
    order,   dated   20.9.2010   dismissing   the   complaint   of   the   complainant   for <\/p>\n
    want of prosecution and acquitting the accused, stands quashed and set <\/p>\n
    aside   and the matter is remitted back to the   learned Trial Court, with <\/p>\n
    direction   to     decide   it   on   its   own   merits,   in   accordance   with   law <\/p>\n
    expeditiously, and the complainant as well as the accused are directed to <\/p>\n
    remain present before the Trial Court on 2.5.2011 at 11.00 a.m. and the <\/p>\n
    parties   are   also   directed   not   to   seek   adjournments   unless   warranted <\/p>\n
    emergently,   and   to   cooperate   with   the   court   to   decide   the   matter <\/p>\n
    expeditiously,   subject   to   payment   of   costs   of   Rs.3,000\/-   by   the <\/p>\n
    complainant   to   the   accused   on   or   before   2.5.2011   and   present   appeal <\/p>\n
    stands disposed of accordingly.\n<\/p>\n
                                               (SHRIHARI P. DAVARE, J.)
\n    dbm\/crap4775.10<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 17:10:47 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Karkhana Ltd. vs Anant on 8 April, 2011 Bench: Shrihari P. Davare 1 crap4775.10 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-86978","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nKarkhana Ltd. vs Anant on 8 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/karkhana-ltd-vs-anant-on-8-april-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Karkhana Ltd. vs Anant on 8 April, 2011 - 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