Bombay High Court
Sanjay Chunilal Pokharna vs Mukund Madhusudan Deshmukh & Anr on 4 May, 2016
Bench: A.I.S. Cheema
902Apeal-633-05.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 633 OF 2005
Sanjay s/o Chunilal Pokharna ... Appellant
Age 37 years, Occu: Business and (Orig.
Agriculture, R/o Chitale Road, complainant)
Ahmednagar, District Ahmednagar.
VERSUS
1. Mukund s/o Madhusudan Deshmukh
Age 38 years, Occu: Business
R/o Talmajala, Bramha Chaitnya
society, Gormala, Sinhagad Road,
Dhari, Pune.
2.
The State of Maharashtra ... Respondents
Mr. U. S. Malte, Advocate for the appellant.
Mr. N.C. Garud, Advocate for respondent No.1
Mr. S.M. Ganachari, A.P.P. for the State.
CORAM : A.I.S. CHEEMA, J.
DATE : 04th May, 2016
JUDGMENT:
1. Heard learned counsel for the appellant-
original complainant. In this Appeal, leave against
acquittal has been already granted. It is taken up
for hearing finally.
2. It is stated that in this matter, the
appellant had filed proceeding under section 138 of
the Negotiable Instrument Act,1881 as cheque of
902Apeal-633-05.odt
Rs.40,000/- had bounced. When the matter was fixed
for hearing, the appellant was waiting in the Court
and went out for some time. However, in his absence,
the matter got called out and the complaint was
dismissed. The counsel says that when he returned
in the afternoon itself, the appellant-complainant
came to know that complaint has been dismissed.
Through his advocate, the complainant immediately
filed application Exh.18 for restoration, but as the
court had already dismissed the matter, the Chief
Judicial Magistrate did not entertain the application
and thus, this appeal has been filed against the
acquittal which was consequence of the impugned order
passed by the Chief Judicial Magistrate below Exh.1.
Learned counsel states that on technical
ground, the appellant-complainant may not be made to
suffer.
3. Learned counsel for respondent No.1-original
accused states that the complainant was negligent in
pursuing the complaint and as the complainant was not
pursuing the matter, the learned Chief Judicial
Magistrate was justified in rejecting the complaint
and acquitting the accused.
902Apeal-633-05.odt
4. I have gone through the matter. The complaint
was filed on 11.06.1998. Presence of respondent-
accused was ensured and on the accused appearing,
his plea was recorded on 05.11.1999. It appears from
the Roznama that accused was absent on 21.12.1999.
The complainant remained absent on 16.03.2000 and on
08.08.2000 and 06.09.2000 also the complainant sought
adjournments. Original Roznama shows that accused
was absent on 08.08.2000, 06.09.2000 as well as on
03.10.2000. Thus, it appears that both the parties
were not seriously pursuing the complaint. There is
no reason why as per provisions of Section 145 of
the Negotiable Instrument Act, 1881, the appellant-
complainant could not have filed an affidavit by way
of his evidence when the matter was listed for
hearing on so many dates and thus there is clear
negligence but it is also appearing to be of both
sides. As such, one opportunity needs to be granted
to the appellant-complainant subject to payment of
costs.
5. In the result, I pass following order:
i. Appeal is allowed.
902Apeal-633-05.odt
ii. Impugned order dated 03.10.2000 passed in S.T.C.
No. 2095 of 1998 is quashed and set aside
subject to payment of costs of Rs.7,500/-
(Rupees seven thousand five hundred) by the
appellant-complainant, which shall be deposited
in the Registry of this Court to be paid to
State.
iii. The costs shall be deposited on or before 1 st
June, 2016, in which case, the original
complaint shall stand restored. The appellant-
complainant shall produce official receipt of
deposit before the Chief Judicial Magistrate
with affidavit of compliance. The appellant-
complainant and the respondent-accused shall
appear before the Chief Judicial Magistrate,
Ahmednagar on 13.06.2016. If the costs are not
deposited as directed above, the present appeal
shall be treated as dismissed.
iv. Appeal is accordingly disposed of.
v. No separate summons will be necessary for the
respondent-accused to appear before the Chief
Judicial Magistrate. If he does not appear as
902Apeal-633-05.odt
directed above, the Chief Judicial Magistrate
to proceed to ensure his presence.
vi. Registry to inform these orders to the Chief
Judicial Magistrate immediately and send back
record and proceedings.
(A.I.S. CHEEMA, J. )
JPC
