Bombay High Court
Shri. Pravin Pundlikrao Belsare vs State Of Maharashtra Thr. Public ... on 14 June, 2017
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APL) NO. 242/2017
Pravin Pundlikrao Belsare,
aged about 37 years, Occ. Business,
R/o Nimtalai, Post Kothurna,
Tq. Saoner, Dist. Nagpur (PS Saoner) ....APPLICANT
...V E R S U S...
State of Maharashtra, through
Public Prosecutor, Office at High Court,
Nagpur, Civil Lines, Nagpur. ...NON APPLICANT
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Mr. P. S. Tidke, Advocate for applicant.
Ms. T. Udeshi, A.P.P. for non applicant.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 14.06.2017
ORAL JUDGMENT
1. Rule. Rule returnable forthwith. Heard finally by
consent of the parties.
2. The applicant is original complainant. He has filed the
aforesaid complainant under Section 138 read with section 142 of
the Negotiable Instruments Act. The said complaint was registered
as Summary Case No.1004/2015 on the file of Judicial Magistrate
First Class, Saoner. The aforesaid complaint was dismissed in
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default on 23.02.2017 by giving a reason that the complainant is
absent continuously from 14.06.2016.
3. The roznama of the said proceeding is filed on record.
Perusal of the said roznama shows that on 14.06.2016, an
application was moved for issuance of bailable warrant against the
accused. The application filed on behalf of the applicant was
allowed by the learned Magistrate and the bailable warrant was
issued. The matter was kept on 02.07.2016. On that day, the
applicant was present. However, there was no report of execution
of bailable warrant and the matter was kept on 18.06.2016. On
18.06.2016 also, the applicant was present and the matter was
further adjourned to 20.09.2016 awaiting execution of the bailable
warrant. On 20.09.2016, the applicant was not present but the
case was called out. Out of the three dates till 10.01.2017 the
applicant was present only on one date. However, till today, there
is no report of execution of the bailable warrant. On 27.01.2017,
both the complainant and his counsel were present and the matter
was fixed for report of the execution of bailable warrant.
Thereafter, on 23.02.2017 when the impugned order was passed,
the applicant and his counsel were absent.
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Though, on some dates, the complainant was absent,
till the impugned order was passed, there was no report of
execution of the bailable warrant. In fact on 10.01.2017, the
applicant moved an application for issuance of warrant and that
application was also allowed by the learned Magistrate.
4. From the aforesaid chronology of events, it is clear that
the applicant cannot be faulted. The learned counsel has invited
my attention to an unreported judgment of this Court in Criminal
Application No.409/2013 (Kusumgar Finance & Marketing
Co. .vs. State of Maharashtra) dated 10.07.2013 and submitted
that the order of dismissing in default may be set aside.
5. I have gone through the judgment of this court dated
10.07.2013. The facts in the said case and the present case are
identical. In the present case, the original accused did not appear
before the learned Magistrate. The applicant was not at fault. He
took every steps to procure the presence of the accused. A chance
should be given to the applicant to prove his case on merits.
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6. In that view of the matter, the impugned order dated
23.02.2017 passed by J.M.F.C. Saoner in Summary Case
No.1004/2015 is hereby quashed and set aside. Summary Case
No.1004/2015 is restored to file.
The applicant shall appear before the learned
Magistrate on 04.07.2017 and abide by further directions of the
learned Magistrate.
Rule is made absolute in the above terms. No order as
to costs.
JUDGE
kahale
