Bombay High Court
Vijay S/O Govinda Borkar vs State Of Mah. Thr. Police Station ... on 19 October, 2016
Bench: I.K. Jain
1 judg. rev.108.11.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Revision Application No.108 of 2011
Vijay s/o Govinda Borkar,
Age 58 years, Occ.-Service,
R/o. Opposite Madan School, Amar Jyoti Nagar,
Near Bhim Chowk, Nagpur. .... Applicant
Versus
1]
State of Maharashtra,
through Police Station Officer,
Police Station Jaripatka, Nagpur.
2] Ku. Ushakiran d/o Jiwandas Narula,
Aged 42 years, Occ.-Business,
R/o. Near Mahatma Gandhi High School,
Jaripatka, Nagpur. .... Non-applicants
Shri Sudhir Malode, Advocate for applicant.
Shri Amit Chutake, Assistant Public Prosecutor for
respondent no.1.
Coram : Kum. Indira Jain, J.
Dated : 19th October, 2016.
O R A L J U D G M E N T [Per Kum. Indira Jain, J.]
By this Criminal Application applicant is challenging
the judgment and order dated 03-01-2009 passed by the
learned Additional Sessions Judge, Nagpur in Criminal
Appeal No.100 of 2006 and judgment and order dated
2 judg. rev.108.11.odt
23-03-2006 passed by the learned Judicial Magistrate First
Class, Nagpur in Summary Complaint Case No.2877 of
2005.
2] Facts giving rise to the present application may be
stated in brief as under :-
Respondent no.2 is the original complainant in
Summary Criminal Case No.2877 of 2005 filed against the
applicant (hereinafter referred as 'Accused') under Section
138 of the Negotiable Instruments Act. It is the case of
complainant that accused was in need of Rs. 60,000/- and
asked her for hand loan of Rs.60,000/-. Accused was
familiar to complainant and considering his difficulty she
gave him Rs.60,000/- on 15-10-2003. According to
complainant accused issued two cheques dated
07-11-2003 and 15-11-2003. As both the cheques
dishonoured she filed complaint under Section 138 of the
Negotiable Instruments Act.
3] Accused appeared before the trial Court. Particulars
of accusations were explained to the accused. He
pleaded not guilty and claimed to be tried. Complainant
filed an affidavit in lieu of her evidence. Accused did not
enter the witness box. Considering the evidence of
3 judg. rev.108.11.odt
complainant and the documents produced trial Court
came to the conclusion that offence under Section 138 of
the Negotiable Instruments Act was proved and accused
was convicted. He was directed to pay amount of
Rs.75,000/- under Section 357(iii) of the Code of Criminal
Procedure to complainant towards payment of amount of
cheques, damages and interest within 30 days from the
date of judgment.
4] The order of conviction was challenged by the
accused before the Sessions Court in Criminal Appeal No.
100 of 2006. Accused did not appear before the appellate
Court. Both the parties remained absent. Appellate
Court on perusal of available record confirmed the
findings and judgment and order of conviction passed by
the trial Court. It is this order which is under challenge in
this application.
5] Shri Malode, learned Counsel for applicant made
two-fold submissions. It is submitted that appellate Court
without hearing the appellant proceeded to pass the
judgment and opportunity of hearing was denied to him.
It is contended that appellate Court ought to have issued
warrant if appellant was not present and should not have
4 judg. rev.108.11.odt
decided appeal in the absence of appellant. Another
ground raised by learned Counsel for appellant is that at
the time of explaining particulars of offence complained of
to the accused trial Court had referred only to one cheque
i.e. cheque no.575954 of Rs.30,000/- and there is no
whisper of second cheque in the particulars of offence.
Learned Counsel submits that particulars explained suffer
from inherent defect and the appellate Court missed this
important point.
ig Learned Counsel submitted that in this
background it would be appropriate to remit the matter
back to the appellate Court for its fresh consideration.
6] None appeared for respondent no.2 on first call.
Even now nobody is present for respondent no.2.
7] On perusal of particulars of offence explained by the
trial Court to the accused it is apparent that trial Court
has explained the particulars only in respect of one
cheque of Rs.30,000/- and there is no reference of another
cheque of Rs.30,000/- in the particulars. Trial Proceeded
in respect of both the cheques. While recording
conviction trial Court has recorded that both the cheques
were dishonoured and accused was guilty of the offence.
It means accused was convicted of the offence without
5 judg. rev.108.11.odt
explaining substance of accusations to accused in respect
of second cheque. This is not permissible in law.
8] Another ground raised by the learned Counsel for
appellant also cannot be said to be without substance. It
is clear from the Judgment of appellate Court that none
was present on the date when appeal was fixed for
arguments and on the basis of record appellate Court
proceeded to deliver the judgment. If appellant-accused
was not present appellate Court ought to have issued
warrant to secure his presence. This exercise was not
undertaken. In this backdrop judgment and order passed
in the absence of appellant needs to be set aside and the
matter is to be remitted to the First Appellate Court for its
fresh decision.
9] Hence in the above premise this Court is inclined to
allow the application with the following order :-
(a) Criminal Revision Application No.108 of
2011 is partly allowed.
(b) Impugned judgment and order dated
03-01-2009 passed by the learned
6 judg. rev.108.11.odt
Additional Sessions Judge, Nagpur in
Criminal Appeal No. 100 of 2006 is
quashed and set aside.
(c) Matter is remanded to the first appellate
Court with a direction to decide the appeal
afresh on merits in accordance with the
law and after giving an opportunity of
hearing to the parties.
(d) In the circumstances of the case no order
as to costs.
(e) Rule is made absolute in the above terms.
JUDGE
Deshmukh
