apeal222.16.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.222 OF 2016
Saraswat Cooperative Bank Limited
A Bank Registered under the Maharashtra
Cooperative Societies Act, through its
Manager Shri N.L. Yadav, having its
Registered Office at Nikadwari Lane,
Girgaum and Branch Office at Gandhibagh,
Nagpur. ....... APPELLANT
...V E R S U S...
Mohd. Jafar s/o Abdul Rahim
Aged about 48 years,
Occ: Business, R/o Municipal
Corporation House No.363,
City Survey No.279, Sheet No.137,
situated at Mohammad Ali Road,
Mominpura, Ward No.49,
Nagpur - 440 018. ....... RESPONDENT
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Shri M.D. Samel, Advocate for Appellant.
None for Respondent.
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CORAM: ROHIT B. DEO, J.
DATE: th
12 OCTOBER, 2017.
ORAL JUDGMENT
1] The appellant Bank is aggrieved by the order dated
01.03.2014 in Summary Criminal Case 711/2005 delivered by the 31st Joint Civil Judge, Junior Division and Judicial Magistrate First ::: Uploaded on - 12/10/2017 ::: Downloaded on - 14/10/2017 02:36:01 ::: apeal222.16.J.odt 2 Class and Special Court of 138 Negotiable Instruments Act, Nagpur, by and under which, the complaint under section 138 of the Negotiable Instruments Act, 1881 (Act for short) is dismissed in view of the absence of the complainant and the counsel. 2] The complainant is engaged in the business of banking. The gist of the complaint under section 138 of the Act is that the accused who is proprietor of M/s. Taj Trading Company was extended a housing loan of Rs.10,00,000/- on 08.07.2003 - 09.07.2003.
3] The accused was irregular in payment of the loan installments and did not credit any amount in the loan account after 31.03.2004. The loan was recalled in November, 2004 and the accused was asked to liquidate the entire loan by paying Rs.11,05,000/- being the amount due inclusive of interest. 4] The accused issued cheque dated 23.11.2004 in favour of the complainant, the same cheque was presented to the banker of the accused on 24.11.2004, the cheque was dishonoured, the statutory notice was issued and since the ::: Uploaded on - 12/10/2017 ::: Downloaded on - 14/10/2017 02:36:01 ::: apeal222.16.J.odt 3 accused did not make the payment of the amount covered by the cheque, the complaint under section 138 of the Act was instituted. 5] Shri M.D. Samel, the learned counsel for the complainant has invited my attention to the order-sheet of the proceeding. The effort of Shri Samel is to demonstrate that since the very institution of the complaint, the complainant and his counsel have been attending the Court diligently. However, despite every effort, the accused could not be served with the summons. My attention is also invited to the fact that for a substantial period, intermittently, the case papers were not traced and no progress in the proceedings was possible. Shri Samel invites my attention to the fact that as on 01.03.2014 when the Trial Court dismissed the complaint, the stage was return of warrant. The submission is that since the complaint was not fixed for hearing, the presence of the complainant or the counsel was not absolutely necessary and at any rate the Trial Court ought not to have dismissed the complaint. 6] Shri Samel relies on the judgment of this Court in 2012 ALL MR (Cri) 197 Sau. Kasabai w/o Jagannath Kondke Vs. ::: Uploaded on - 12/10/2017 ::: Downloaded on - 14/10/2017 02:36:01 ::: apeal222.16.J.odt 4 Sau. Chandrabhagabai w/o Ramrao Kondke & Ors. and a judgment of the Himachal Pradesh High Court in Boby Vs. Vineet Kumar 2010 (2) Civil LJ 482 in particular to paragraphs 10, 11 and 12 of the said judgment which read thus:
10. Thus when the Court notices that the complainant is absent on a particular day, the Court must consider whether the 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 powers, envisaged in the section.
11. Therefore, the discretion in the aforesaid section has to be exercised fairly and judiciously without impairing the cause of administration of criminal justice, which should be spelt out from the order passed by the Court.
12. In the facts in hand, the learned Trial Court has given a complete go by to the essential requirements of Section 256 of the Code and did not record the reason whether the presence of complainant was essential for the progress of the case, which on facts was not; therefore, the impugned order is indefensible, thus unsustainable, thus, set aside. Consequently, the complaint aforesaid is remanded back to the learned Trial Court for its disposal in accordance with law. It shall be entered against its original number.::: Uploaded on - 12/10/2017 ::: Downloaded on - 14/10/2017 02:36:01 ::: apeal222.16.J.odt 5
7] My attention is also invited to a judgment of this Court in Pratap vs. Bhagwandas 2012 (2) Civil LJ 236 to buttress the submission that the dismissal of the complaint is not warranted.
8] On perusal of the order-sheet, I have no hesitation in recording a finding that the dismissal of the complaint is absolutely unwarranted and unsustainable. The order-sheet reveals that the complainant along with counsel diligently appeared before the Magistrate on most of the dates of hearing. That apart, since the complaint was fixed only for return of warrant, the complaint ought not to have been dismissed only for absence of the complainant or counsel. Although the impugned order does state that the presence of the complainant was necessary, it is not clear from record as to why the presence of the complainant was absolutely necessary since the stage was not of hearing but of return of warrant.
9] A substantial amount is involved and the amount is ultimately of a Co-operative Society which is engaged in the business of banking. It would be appropriate if the learned ::: Uploaded on - 12/10/2017 ::: Downloaded on - 14/10/2017 02:36:01 ::: apeal222.16.J.odt 6 Magistrate decides the complaint on merit.
10] The order impugned is set aside. 11] The Summary Criminal Case 711/2005 is restored to file. 12] The complainant shall make every effort to ensure
that the accused is served within two months from today. 13] The learned Magistrate is directed to ensure that the complaint is finally decided as expeditiously as possible and in any event within four months from the date of service of the summons or warrant on the accused.
14] The Registry to ensure that the record is sent back to the learned Trial Court immediately.
15] The appeal is allowed.
JUDGE
NSN
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