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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APL) NO. 242/2017
Pravin Pundlikrao Belsare,
aged about 37 years, Occ. Business,
R/o Nimtalai, Post Kothurna,
Tq. Saoner, Dist. Nagpur (PS Saoner) ....APPLICANT
...V E R S U S...
State of Maharashtra, through
Public Prosecutor, Office at High Court,
Nagpur, Civil Lines, Nagpur. ...NON APPLICANT
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Mr. P. S. Tidke, Advocate for applicant.
Ms. T. Udeshi, A.P.P. for non applicant.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 14.06.2017 ORAL JUDGMENT
1. Rule. Rule returnable forthwith. Heard finally by consent of the parties.
2. The applicant is original complainant. He has filed the aforesaid complainant under Section 138 read with section 142 of the Negotiable Instruments Act. The said complaint was registered as Summary Case No.1004/2015 on the file of Judicial Magistrate First Class, Saoner. The aforesaid complaint was dismissed in ::: Uploaded on - 15/06/2017 ::: Downloaded on - 16/06/2017 00:59:48 ::: 2 apl242.17.odt default on 23.02.2017 by giving a reason that the complainant is absent continuously from 14.06.2016.
3. The roznama of the said proceeding is filed on record. Perusal of the said roznama shows that on 14.06.2016, an application was moved for issuance of bailable warrant against the accused. The application filed on behalf of the applicant was allowed by the learned Magistrate and the bailable warrant was issued. The matter was kept on 02.07.2016. On that day, the applicant was present. However, there was no report of execution of bailable warrant and the matter was kept on 18.06.2016. On 18.06.2016 also, the applicant was present and the matter was further adjourned to 20.09.2016 awaiting execution of the bailable warrant. On 20.09.2016, the applicant was not present but the case was called out. Out of the three dates till 10.01.2017 the applicant was present only on one date. However, till today, there is no report of execution of the bailable warrant. On 27.01.2017, both the complainant and his counsel were present and the matter was fixed for report of the execution of bailable warrant. Thereafter, on 23.02.2017 when the impugned order was passed, the applicant and his counsel were absent. ::: Uploaded on - 15/06/2017 ::: Downloaded on - 16/06/2017 00:59:48 :::
3 apl242.17.odt Though, on some dates, the complainant was absent, till the impugned order was passed, there was no report of execution of the bailable warrant. In fact on 10.01.2017, the applicant moved an application for issuance of warrant and that application was also allowed by the learned Magistrate.
4. From the aforesaid chronology of events, it is clear that the applicant cannot be faulted. The learned counsel has invited my attention to an unreported judgment of this Court in Criminal Application No.409/2013 (Kusumgar Finance & Marketing Co. .vs. State of Maharashtra) dated 10.07.2013 and submitted that the order of dismissing in default may be set aside.
5. I have gone through the judgment of this court dated 10.07.2013. The facts in the said case and the present case are identical. In the present case, the original accused did not appear before the learned Magistrate. The applicant was not at fault. He took every steps to procure the presence of the accused. A chance should be given to the applicant to prove his case on merits. ::: Uploaded on - 15/06/2017 ::: Downloaded on - 16/06/2017 00:59:48 :::
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6. In that view of the matter, the impugned order dated 23.02.2017 passed by J.M.F.C. Saoner in Summary Case No.1004/2015 is hereby quashed and set aside. Summary Case No.1004/2015 is restored to file.
The applicant shall appear before the learned Magistrate on 04.07.2017 and abide by further directions of the learned Magistrate.
Rule is made absolute in the above terms. No order as to costs.
JUDGE kahale ::: Uploaded on - 15/06/2017 ::: Downloaded on - 16/06/2017 00:59:48 :::