Angad vs Kishan
2012 Latest Caselaw 14 Bom

                                        (1)         Cri. Application No. 1941 of 2012
                                                    (Converted into Criminal Appeal)


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                                     
             AURANGABAD BENCH, AT AURANGABAD.




                                                             
               Criminal Application No. 1941 of 2012
               Converted into Criminal Appeal No. 587 of 2012




                                                            
    Angad s/o. Nagnathrao Kathale,
    Age : 49 years,
    Occupation : Agriculture,
    R/o. : Renapur, Taluka : Renapur,




                                          
    District : Laltur.                                          .. Applicant.


                  versus
                           
                          
    Kishan s/o. Baburao Suryawanshi,
    Age : 47 years,
    Occupation : Service,
      

    R/o. : at present Tururi,
    Taluka : Umarga, Dist. : Osmanabad.                         .. Respondent.
   



                                   .......................





                Mr. S.T. Veer, Advocate, for the applicant.

                Mr. Hiraji Gaikwad, Advocate, for the respondent.





                                  ........................




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                                        (2)     Cri. Application No. 1941 of 2012
                                               (Converted into Criminal Appeal)


                                 CORAM : SHRIHARI P. DAVARE, J.




                                                                             
                                  Date of reserving the




                                                     
                                  judgment : 13th September 2012.

                                  Date of pronouncing the
                                  judgment : 28th September 2012.




                                                    
    JUDGMENT :

1. Heard Adv. Mr. S.T. Veer for the applicant, and Adv. Mr.

Hiraji Gaikwad for the respondent.

2.

For the reasons stated in the present Application, leave

granted and the present Application be treated and numbered as Criminal Appeal.

3. Admit.

4. Adv. Mr. Hiraji Gaikwad waives service of notice after admission.

5. By the present appeal, the appellant seeks to challenge the order below Exhibit 1 in STCC No. 241/2008, dated 30th June 2010,

passed by the learned Judicial Magistrate (F.C.), Renapur (District : Latur), thereby dismissing the complaint of the appellant (original complainant), in default, and thereby consequently discharging the accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881, and Section 420 of Indian Penal Code.

(3) Cri. Application No. 1941 of 2012 (Converted into Criminal Appeal)

6. Parties are hereinafter referred to as per their original status i.e. complainant and accused.

7. The factual matrix which gave rise to the present appeal are as follows :

The appellant (original complainant) is a consumer of Osmanabad Janata Sahakari Bank Ltd., Branch Latur, whereas the respondent (original

accused) is working as Clerk in the said Bank, and therefore, they came

into contact with each other and developed friendship between them. The accused requested the complainant for the hand loan of Rs. 90,000/- for

his family necessity and assured to repay the said loan amount after a period of six months. Hence, the complainant gave the said amount of Rs. 90,000/- to the accused as per his demand on 9-1-2002. After the lapse of

period of six months, the complainant asked the accused to repay the said

amount. However, the accused avoided to repay the said amount to the complainant, but gave a cheque to him bearing No. 219686, dated 22nd

August 2003, for Rs. 90,000/-, drawn on Osmanabad Janata Sahakari Bank Ltd., Branch Omerga (District : Osmanabad) towards repayment of the said amount. Accordingly, the complainant deposited the said cheque given by the accused in his bank account. However, the said cheque was

dishonoured and was returned unpaid with the endorsement "funds insufficient" in the account of the accused, along with the bank return memo and covering letter dated 11-9-2003. Hence, complainant issued legal notice to the accused on 19-9-2003, through Advocate, by RPAD and

(4) Cri. Application No. 1941 of 2012 (Converted into Criminal Appeal)

UCP and called upon him to repay the said amount of the cheque.

However, the accused failed to comply with the requisitions contained in the said notice. Hence, the complainant instituted STCC No. 4886/2003

against the accused before learned Judicial Magistrate (F.C.), Latur, for the offence punishable under Section 138 of Negotiable Instruments Act and Section 420 of Indian Penal Code on 17-11-2003.

8. Learned Judicial Magistrate (F.C.), Latur, issued summons to the accused which was served upon the accused, but he did not appear

before the court. Hence, the complainant took step to issue bailable

warrant against the accused. However, the accused did not appear before the court inspite of execution of said bailable warrant. Consequently,

learned trial court issued non-bailable warrant against the accused and thereafter the accused appeared before the said court on 29-8-2007. Accordingly, he was taken into Magisterial Custody Remand and was

released on bail. Thereafter, the said complaint was transferred to the

newly constituted court at Renapur (District : Latur) and the said complaint was re-numbered as STCC No. 241/2008. However, the

accused remained absent before learned Judicial Magistrate (F.C.), Renapur. Hence, the said court issued summons to the accused for his appearance. However, the accused remained absent before the said court. Hence, the complainant took steps for issuance of notice to the surety of

the accused and also paid process fee for non-bailable warrant and notice to the surety. Thereafter, learned Presiding Officer was on leave and even said complaint was referred to Loknyayalaya for settlement. However, accused did not respond. Thereafter, the complainant paid the process fee

(5) Cri. Application No. 1941 of 2012 (Converted into Criminal Appeal)

on 2-12-2009 and the learned trial court again issued summons to the

accused on 9-12-2009. However, learned trial court could not receive the report of service of summons to the accused till 9-2-2010. Thereafter, the

matter was posted for report of service of the said summons. Again on 7-4-2010, notices were issued to the parties in respect of Loknyayalaya and thereafter the matter was posted for orders. However, since the

complainant remained absent on 30th June 2010, learned trial court dismissed the said complaint, in default, on the said date. Hence, the complainant has approached this court by filing Application seeking leave

to file appeal and sought leave to file appeal challenging the said order

dated 30th June 2010, on the grounds mentioned in the present appeal.

9. Adv. Mr. S.T. Veer appearing for the appellant / original complainant, canvassed that the impugned order dated 30th June 2010 is illegal and is against the principles of natural justice. It is submitted that

the learned trial court ought to have considered that the presence of the

accused was required to be secured before the court after execution of non- bailable warrant, since he did not respond to the service of summons and

bailable warrant, and thereafter he was released on bail, but even thereafter he remained absent before the court and, therefore, notices were required to be issued to him and to his surety and process fee was paid therefor. It is further submitted that the learned trial court has not considered the facts

that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act and Section 420 of Indian Penal Code, and he should not have been discharged on technicalities. According to the learned Advocate for the complainant, the complaint was posted for

(6) Cri. Application No. 1941 of 2012 (Converted into Criminal Appeal)

appearance of the accused and also for the report of service of summons

upon him and not for hearing and, therefore, the complaint could not have been dismissed, in default, on 30th June 2010 and the same should have

been adjudicated on its own merits. Accordingly, learned Advocate for the complainant submitted that the impugned order dated 30th June 2010 is contrary to law and is against the principles laid down by this court in

various judicial pronouncements. He further submitted that the learned trial court ought to have considered that the accused remained absent on several occasions in order to protract trial of the case with ulterior motive.

Hence, he urged that the impugned order deserves to be quashed and set

aside, giving opportunity to the complainant to prosecute his complaint on its own merits in accordance with law. To substantiate the contentions,

learned Advocate for the complainant has relied upon following judicial pronouncements :

(a) Judgment of learned Single Judge of this Court in the case of M/s.

Sai Traders, Jalna Vs. Suryakant Kashinath Ovhal & another, reported at 2004 ALL MR (Cri.) 3218.

(b) Judgment of learned Single Judge of this Court in the case of M/s. Shree Datta Fertilizers & Chemical Pvt. Ltd. Vs. Shri Dhanraj O. Mor & another, reported at 2012 ALL MR (Cri.) 1200, and

(c) Judgment delivered by me in the case of Damodhar s/o. Murlidhar Bajaj Vs. Taran s/o. Suryabhan Shinde, reported at 2012 ALL MR (Cri.) 785, wherein reliance was placed on the cases reported at 2006(6) ALL MR (Journal) 27 and 2009 ALL MR (Cri.) JOURNAL 329 - Ref. to (Paras 19 and

(7) Cri. Application No. 1941 of 2012 (Converted into Criminal Appeal)

20).

10. Adv. Mr. Hiraji Gaikwad appearing for the respondent

(original accused) countered the said arguments and opposed the present appeal vehemently and submitted that it is evident from the Roznama of STCC No. 4886/2003 before learned Judicial Magistrate (F.C.), Latur, and

even Roznama of STCC No. 241/2008, before learned Judicial Magistrate (F.C.), Renapur (District : Latur), that the complainant remained absent before the court consistently and even on the date of dismissal i.e. 30th

June 2010, the complainant and his Advocate remained absent before the

court and, therefore, learned trial court has rightly dismissed the complaint, in default, passing order below Exhibit 1 as under :

" This matter is pending without taking any steps since 28-11-2009. Constantly complainant

appears to be inactive as per roznama of the case, hence complaint case is dismissed in default. "

Learned Advocate appearing for the respondent (original accused),

therefore, submitted that the order passed below Exhibit 1 is self-explicit and the same has been passed by the learned trial court rightly and no interference therein is called for in the present appeal. He also argued that

the accused appeared in STCC No. 4886/2003 and he was released on bail by the said court, and even his plea was recorded and the said case was posted for hearing but thereafter it was transferred to the learned Judicial Magistrate (F.C.), Renapur, and was re-numbered as STCC No. 241/2008, and the said case was posted before the said court for hearing, but since

(8) Cri. Application No. 1941 of 2012 (Converted into Criminal Appeal)

parties remained absent before the said court, notices were issued to the

parties and even summonses of Loknyayalaya were issued to the parties, but since the complainant remained absent before the court consistently, and

even on 30-6-2010, the said complaint came to be dismissed in default on the said date and, therefore, learned trial court exercised discretionary jurisdiction rightly while dismissing the said complaint and, therefore,

submitted that no interference therein is called for in the present appeal. He further submitted that the conduct of the complainant is of immense significance and he cannot be allowed to remain case pending for indefinite

period. In the instant case, the complainant did not attend the court for a

long time except on some dates and, therefore, learned trial court rightly exercised the discretion in accordance with mandate of provision of Section

256(1) of the Code of Criminal Procedure, 1973. To substantiate the contentions, learned Advocate for the respondent (original accused) has relied upon following judicial pronouncements :

(i) Judgment of learned Single Judge of this Court in the case of M/s. Lloyds Finance Ltd. Vs. M/s. SKG Solvex Ltd. and others , reported at 2002

CRI.L.J. 2765.

(ii) Judgment of learned Single Judge of this Court in the case of M/s. Merchant alias Somji Agro Industries and Investment (P) Ltd. Vs. Brij Mehra

and another, reported at 2004 CRI.L.J. 1012.

(iii) Judgment of learned Single Judge of this Court in the case of M/s. Hotel Bandra International (P) Ltd. Vs. Brij Mehra and another, reported at 2004 CRI.L.J. 143, and

(9) Cri. Application No. 1941 of 2012 (Converted into Criminal Appeal)

(iv) Judgment of Apex Court in the case of S. Rama Krishna Vs. S. Rami Reddy (Dead) by his L.Rs. and others, reported at 2008(4) Mh.L.J. (Cri.) 246.

Accordingly, learned Advocate for the original accused submitted that the present appeal bears no substance and the same is devoid of any merits and,

therefore, submitted that it be dismissed.

11. I have perused the impugned order dated 30-6-2010, copy of

Roznama of STCC No. 4886/2003 (Old) and STCC No. 241/2008 (New),

and considered rival submissions advanced by the learned Counsel for the parties, anxiously, and perused judicial pronouncement cited by the learned

Advocates for the parties, carefully.

12. At the outset, the Roznama of old STCC No. 4886/2003

discloses that the accused did not appear before the said court inspite of

service of summons upon him and execution of bailable warrant against him and his presence was required to be secured before the court after issuance

of non-bailable warrant against him. Thereafter, the accused appeared before learned Judicial Magistrate (F.C.), Latur, and he was released on bail and thereafter his plea was recorded and matter was posted for hearing. However, thereafter said STCC No. 4886/2003 was transferred from learned

Judicial Magistrate (F.C.), Latur, to learned Judicial Magistrate (F.C.), Renapur, and was re-numbered as STCC No. 241/2008, and the Advocates for the parties remained present before the said court and thereafter the matter was posted for hearing. However, it appears that subsequently

(10) Cri. Application No. 1941 of 2012 (Converted into Criminal Appeal)

parties remained absent before the court and, therefore, summonses were

issued to the complainant, as well as to the accused, and summons on the complainant was served and he remained present before the court, whereas

summons of the accused was not received back. Thereafter, it also appears that on 29-6-2009, summonses of Loknyayalaya were issued to the parties. On 14-9-2009, the complainant and his Advocate, as well as, accused and

his Advocate remained absent and hence notices were issued returnable on 28-11-2009. On 28-11-2009, the complainant remained absent but his Advocate was present and application for accepting process fee was allowed

and accordingly notice of summons was issued to the accused, returnable on

15-12-2009. However, on 15-12-2009, summons of the accused was returned unserved and matter was posted on 8-1-2010 for re-issuance of

summons to the accused. Accordingly, summons was re-issued to the accused returnable on 9-2-2010. The Roznama of 9-2-2010 discloses that the report of service of said summons was awaited and the matter was

posted on 5-4-2010. On 5-4-2010, matter was fixed for the said report. On

7-4-2010, matter was posted for orders and the notices of Loknyayalaya were issued, and the matter was posted on 30-4-2010, and thereafter further

it was posted for 15-5-2010. On 15-5-2010, since the complainant and his Advocate were absent, the matter was posted on 30-6-2010 for orders. Accordingly, on 30-6-2010, said case came to be dismissed in default due to absence of complainant and his Advocate. Thus, it is apparently clear from

the aforesaid Roznama that the report of service of summons upon accused was awaited and the same was not received and even notices of Loknyayalaya were issued to the parties and thereafter matter was posted for orders and it iwas not fixed for hearing on 30-6-2010 but came to be

(11) Cri. Application No. 1941 of 2012 (Converted into Criminal Appeal)

dismissed in default on the said date due to absence of the complainant and

his Advocate.

13. Section 256(1) of the Code of Criminal Procedure empowers a Magistrate to pass an order of acquittal on non-appearance or death of the complainant. The ingredients of Section 256(1) are as follows :

                (i)     That summons must have been issued on a
                complaint,




                                        
                (ii)
                          
                        The Magistrate should be of the opinion that for

some reasons, it is not proper to adjourn the hearing of

the case to some other date; and

(iii) The date on which the order under Section

256(1) can be passed is the day appointed for

appearance of the accused or any day subsequent thereto, to which the hearing of the case has been

adjourned.

The proviso to said Section 256(1) applies where the complainant is represented by a pleader or by the officer conducting the prosecution or

where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. However, in the instant case, as per proviso, the complainant was admittedly represented by his Advocate, and

(12) Cri. Application No. 1941 of 2012 (Converted into Criminal Appeal)

further apparently, as per Roznama the case was fixed for receipt of the

report of service of summons upon the accused and it was fixed on 30-6-2010 for orders and not for appearance of the accused or for hearing

and, therefore, it could not have been dismissed in default on the said date, in contravention of provision of Section 256(1) of the Code of Criminal Procedure. Consequently, the impugned order deserves quashment.

14. In so far as judicial pronouncement of the Apex Court, in the case of S. Rama Krishna Vs. S. Rami Reddy (Dead) by his L.Rs. and others

(supra), which is cited by the learned Advocate for the respondent, is

concerned, the case in the hands of the Apex Court was fixed for hearing on the date of dismissal, but so is not the case in the instant case and, therefore,

the facts and circumstances in the said case, and the facts and circumstances in the present case differ from each other and hence, the observations made therein, with due respect, will not be applicable to the present case.

Moreover, the doctrine of audi alteram partem contemplates that no one

should be condemned unheard. If the impugned order is allowed to hold ground without giving opportunity to the complainant to prosecute the

complaint on its own merits, he would feel prejudiced about his rights. Moreover, interest of justice requires that opportunity be given to the complainant to adduce / produce evidence and the matter be decided on its own merits. Hence, in the circumstances, present appeal deserves to be

allowed by setting aside the impugned order dated 30-6-2010, whereby complaint of the complainant came to be dismissed, and the said case is required to be restored to its original stage, and the matter is required to be remanded to the trial court with direction to the parties to remain present

(13) Cri. Application No. 1941 of 2012 (Converted into Criminal Appeal)

before learned trial court on a specified date, with liberty to adduce /

produce evidence, if any, and also with directions that not to seek any adjournments unless warranted emergently and the learned trial court is

required to be requested to decide the matter on its own merits in accordance with law. But simultaneously accused is required to be compensated aptly by imposing reasonable costs upon the complainant

which is quantified at Rs. 1000/-.

15. In the result, present appeal is allowed, and the impugned order

dated 30-6-2010, passed by the learned Judicial Magistrate (F.C.), Renapur,

in STCC No. 241/2008, dismissing the said complaint for the offences punishable under Section 138 of Negotiable Instruments Act, and Section

420 of Indian Penal Code, stands quashed and set aside, and STCC No. 241/2008 stands restored to the file at its original stage, and the matter is remitted back to the learned trial court, to decide the same afresh, and

parties are directed to remain present before learned trial court on 29th

October 2012 at 11.00 a.m., and further directed not to seek adjournments unless warranted emergently, and learned trial court to decide said STCC

No. 241/2008 in accordance accordance with law and on its own merits expeditiously, subject to payment of costs of Rs. 1000/- [Rupees one thousand only] by the complainant to the accused on or before the said date, and the present appeal stands disposed of finally.

(SHRIHARI P. DAVARE) JUDGE

bgp/cria1941