Bombay High Court
Vitthalsai Sahakari Sakhar ... vs Bapu Dharma Waghmare on 8 June, 2017
Bench: V.L. Achliya
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO.93 OF 2017.
Shri Vitthalsai Sahakari Sakhar
Karkhana Ltd., Murum,
Tq. Omerga, Dist. Osmanabad,
through its Authorised Officer,
Limbari s/o Subhash Mitkari,
age 43 years, occu. Service,
r/o Murum, Tq. Omerga,
District Osmanabad. ... APPELLANT.
VERSUS
Bapu s/o Dharma Waghmare,
age major, occu. Agri & Contractor,
r/o Devdhanora, Tq.Kalamb,
District Osmanabad. ... RESPONDENT.
( ORI. ACCUSED ).
...
Advocate for appellant : Mr.Mukhedkar Amit A.
Respondent though served, failed to appear.
...
CORAM : V.L. ACHLIYA, J.
JUNE 08, 2017.
ORAL JUDGMENT:
Being aggrieved by the order dated 14.09.2016
passed by the Judicial Magistrate, First Class at Omerga,
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District Osmanabad in S.C.C. No.180 of 2008 whereby,
the complaint filed by the appellant came to be
dismissed in default, the appellant has preferred this
appeal.
2. Brief facts leading to filing of this appeal are
summarized, as under:-
The appellant - original complainant filed
complaint under Section 138 of the Negotiable
Instruments Act as against respondent - accused
alleging therein dishonour of cheque of Rs.1,67,611/-
issued by respondent in favour of complainant in
discharge of legal liability / debt. It is alleged that in
spite of issuance of statutory notice, respondent -
accused failed to pay the amount of cheque dishonoured.
The complaint was filed in the year, 2008. After due
consideration of the allegations made in the complaint
and the documents as relied and further recording
verification statement, the learned J.M.F.C. was pleased
to issue process under Section 138 of the Negotiable
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Instruments Act. The efforts made to secure the
presence of accused by issuance of summons, warrant
and proclamation and attachment of property of accused
resulted in vain. Ultimately, the appellant - complainant
filed application vide Exh.28 to sell the attached property
of the accused by invoking powers under Sections 84 and
85 of Cr.P.C. so as to secure presence of the accused for
trial. The application, duly supported with affidavit and
7/12 extract of property owned by respondent - accused,
was presented on 27.5.2016. Instead of passing order,
the learned Magistrate placed the application for
argument. On 14.9.2016 by recording absence of the
complainant and his advocate, the learned Magistrate
has dismissed the complaint and discharged the accused
by invoking powers under Section 256 of Cr.P.C. Being
aggrieved, the appellant has preferred this appeal.
3. I have heard the learned Counsel for the appellant.
Respondent though served, failed to appear. In order to
appreciate the submissions, I have thoroughly perused
the record and proceedings.
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4. Mr. Mukhedkar, learned Counsel appearing for
appellant strenuously contended that the record and
proceedings of the case reflect that the appellant was
diligently prosecuting the proceedings and had taken all
necessary steps to secure the presence of accused for
trial. It is the accused who was avoiding to appear
before the Court. As a step to secure presence of the
accused, the Court has also issued proclamation and
declared the accused as absconding and attached the
property of accused. In spite of declaring him
absconding, accused failed to appear. Therefore,
appellant moved an application under Section 84 of the
Cr.P.C. to sell the attached property. In this background
the learned Counsel contended that there was no
necessity to have posted the matter to advance argument
and dismiss the complaint for want of presence of
complainant.
5. In order to appreciate the submissions advanced, I
have perused the record and proceedings. In my view,
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the dismissal of complaint and discharge of the accused
is not justified in the light of facts and circumstances of
the case. It is apparent on the face of record that in spite
of service of summons, the accused failed to appear
before the Court. Non-bailable warrant issued against
the accused could not be executed as the respondent
accused was not found at the address given. In this
view, the appellant moved an application on 4.3.2014 to
issue proclamation under Section 82 of Cr.P.C. vide
Exh.22. The request was granted. In spite of
proclamation, the accused failed to record his
appearance. Therefore, appellant moved an application
vide Exh.23 to attach immovable property of the accused.
Accordingly, the order was passed to attach property of
the accused. In spite of that, the accused failed to
appear. Therefore, the appellant moved an application
seeking action under Section 84 of the Cr.P.C. vide
application dated 27.5.2016 filed in the matter. It
appears from the record that the application was posted
for hearing on 24.6.2016. On that date, the application
could not be heard due to absence of complainant and
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his Advocate. On subsequent date, the Presiding Officer
was not present. Ultimately, on 14.9.2016, the impugned
order came to be passed. In this view, the order of
dismissal of complaint is not justified. In fact, the
learned Magistrate ought to have considered the
application on its own merits instead of dismissing the
application in default of appearance of complainant.
Personal appearance of the complainant was not
necessary for deciding such application. I am, therefore,
inclined to allow the appeal and set aside the impugned
order. Hence, the following order:
: ORDER :
i) Criminal Appeal No.93 of 2017 is allowed in
terms of prayer clauses (B) and (C). The case is
restored to its original number;
ii) The application (Exh.28) is restored to the file.
iii) The complainant is directed to appear before
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the trial Court on 10th July, 2017. The trial Court
is directed to decide the application (Exh.28) on its
own merits, after giving opportunity of hearing to
the appellant and proceed further in the matter;
iv) The appeal is disposed of in above terms.
[ V.L. ACHLIYA, J ]
Kadam.
