Sunil S/O Baburao Mehtre vs Charansingh S/O Vithalsingh ...
2016 Latest Caselaw 1312 Bom

                                                        Criminal Appeal No.654/2015
                                              1




                                                                               
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                                   BENCH AT AURANGABAD




                                                       
                        CRIMINAL APPEAL NO.654 OF 2015




                                                      
     Sunil s/o Baburao Mehtre
     Age 43 years, Occ. Business,




                                         
     R/o Takhur Colony, Gangakhed,
     Tq. Gangakhed, District Parbhani
                              ig                        ...   APPELLANT
                                                  (Original Complainant)

              VERSUS
                            
     Charansingh s/o Vithalsing Takhur
     Age 45 years, Occu. Business
     R/o Takhur Colony, Gangakhed,
     Tq. Gangakhed, District Parbnhani                 ...      RESPONDENT
      
   



                       .....
     Shri V.C. Solshe, Advocate for appellant
     Shri D.M. Shinde, Advocate for respondent
                       .....





                                     CORAM:       A.I.S. CHEEMA, J.

                                     DATED:       7th April, 2016.





     ORAL JUDGMENT :

1. Heard learned counsel for the appellant and learned

counsel for respondent.

Criminal Appeal No.654/2015

2. The appeal is admitted. Mr. Shinde, learned counsel

waives service of notice for respondent after admission of appeal.

With the consent of learned counsel for the parties, the appeal is

taken up for final hearing.

3. It is contended by the learned counsel for the

appellant (original complainant) that the trial Court has acquitted

the respondent (original accused) on 4.5.2013 without giving

opportunity to the complainant to establish his case. It is

submitted that, the complainant secured presence of accused

after many efforts. The roznama shows that on some days both

complainant and accused were absent and at times the

complainant was present and accused was not there while there

were times when accused was there and complainant was not

there. It is stated that, on 4.5.2013 when the complaint was

dismissed, the counsel for complainant had filed application

Exh.35 because the complainant was required to go with his son

to Pune for C.E.T. examination. The Court should have given

opportunity instead of dismissing the complaint and acquitting

the accused.

4. Counsel for respondent - accused submits that the

Criminal Appeal No.654/2015

roznama shows that the complainant was not vigilant in

conducting the matter and was remaining absent frequently.

According to the counsel, the trial Court rightly found that the

complainant was not interested in conducting the matter and

rightly acquitted the accused.

5. Having gone through the matter and considering the

roznama, it can be seen that the complaint was filed in 2007 and

came up before the trial Court on various occasions. The

complainant made efforts to secure presence of the accused.

The accused appeared in the trial Court, it appears, for the first

time on 29.4.2011. The roznama thereafter shows that, at times

both the complainant as well as the accused were absent and at

times present. On 2.1.2013, an application was moved for

issuing non-bailable warrant for the accused and it was accepted.

Thereafter the accused appeared and got the non-bailable

warrant cancelled. The matter was then listed to 30.1.2013,

when complainant and accused both were absent. Same was the

condition on 2.3.2013. When the matter came up on 3.4.2013,

application was moved on behalf of the complainant vide Exhibit

34, claiming that the complainant had gone out due to his

business and time may be given. The trial Court recorded that,

Criminal Appeal No.654/2015

when the matter was called out, the Advocate and complainant

were not present. By that time, however, it appears, the

accused had reached. The application of complainant was

rejected. In roznama, however, it is mentioned that application

of the accused has been rejected. The matter was kept for

dismissal on 14.5.2013 when application Exh.45 came to be filed

and the same was rejected.

6. I find that, the record shows that, the complainant as

well as the accused both have not been promptly attending the

matter, because of which the matter is protracted. On 4.5.2013,

when the complainant had filed application Exh.35 seeking time

as he had to go with his son to Pune for C.E.T. examination, it

would been appropriate to give time, may be by imposing cost,

so that on next date the pinch is felt. It would not be in the

interest of justice to throw out the matter when the complainant

and his Advocate are pursuing the matter in the Court. It is not

a case that for multiple dates none is appearing.

7. In the interest of justice, I feel that one opportunity

may be given to the complainant by imposing costs.

Criminal Appeal No.654/2015

8. (A) For the above reasons, the appeal is allowed. The

impugned order passed by the trial Court, dated 4.5.2013,

passed below Exh.1 in S.C.C. No.108/2011 by 2nd Judicial

Magistrate, First Class, Gangakhed is quashed and set aside,

subject to costs of Rs.3000/- (Rupees three thousand) to be

deposited in the trial Court. The costs, when deposited, shall be

credited to the State.

(B)

The complaint is restored to file subject to payment

of costs.

10. The complainant and respondent shall appear before

the trial Court on 25.4.2016 on or before which the costs should

be paid. No separate notice may be issued to the complainant or

accused for the date of 25.4.2016. Their absence on the said

date will attract suitable action from the trial Court. If costs are

not deposited on or before 25.4.2016, present order allowing

appeal shall be treated as automatically withdrawn and appeal

shall be treated as dismissed.

(A.I.S. CHEEMA, J.)

fmp/cri654.15