Hemlata W/O. Aashish Meshram vs Avinash Tukaramji Yaolakar And ...
2017 Latest Caselaw 3347 Bom

                      Judgment

                                                                                       revn177.16 19 

                                                             1

                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                 NAGPUR BENCH, NAGPUR

                      CRIMINAL REVISION APPLICATION (REVN) NO.177 OF 2016

                      Hemlata w/o Aashish Meshram
                      Aged about 36 Yrs. Occ.-Service
                      R/o Plot No.2, Ambika Nagar,
                      Nagpur (Police Station Hudkeshwar).         ..... Applicant.

                                                      ::   VERSUS   ::

                      1. Avinash Tukaramji Yaolakar
                      Aged about 41 Yrs, Occ.-Business
                      R/o Plot No.182, New Subhedar Lay Out,
                      Nagpur (P.S. Sakkardara).
Resp. No.2 deleted 
as per order dated 
     27.4.17
                      2. The State of Maharashtra through
                      P.S.O. P.S. Sakkardara, 
                      District Nagpur.                         ..... Non-applicants.

                      ==============================================================
                                Shri R.P. Malviya, Counsel for the applicant.
                                Shri M.A. Randive, Counsel for the non-applicant.
                      ==============================================================


                                                    CORAM : V.M. DESHPANDE, J.

                                                    DATE     : JUNE 20, 2017.



                      ORAL JUDGMENT

1. Heard learned counsel Shri R.P. Malviya for

.....2/-

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the applicant and learned counsel Shri M.A. Randive for

the non-applicant.

2. Rule. Rule is made returnable forthwith.

Heard finally by consent of learned counsel for the

parties.

3. The present proceedings are filed by the

applicant, who is original complainant, who seeks

reversal of order passed by learned Judicial Magistrate

First Class, Court No.27, which is also a Special Court

for the cases under Section 138 of the Negotiable

Instruments Act, 1881, in Summary Criminal Case

No.26013 of 2011 by which learned Magistrate dismissed

the complaint under Section 256 of the Code of Criminal

Procedure for want of prosecution and for non-

appearance of the complainant.

.....3/-

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4. The proceedings were initiated by the present

applicant before learned Magistrate under Section 138

of the said Act.

5. The applicant has filed the certified copy of

Roznama before this Court. From the Roznama, it is

clear that proceedings were filed on 24.11.2011. The

verification of the complaint was done on 11.1.2012.

Thereafter, summonses were issued. From 13.2.2012 to

16.8.2012, the case was adjourned from-time-to-time

since the report of service of summonses were not filed

on record. Then, it appears that application for Non

Bailable Warrant was moved since in spite of service,

non-applicant/accused failed to remain present. The

said was allowed. Thereafter, on 11.9.2012 an

application was moved by the present non-applicant for

taking the case on Board and filed an application for

.....4/-

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cancellation of Non Bailable Warrant. The said were

allowed.

Thereafter, the matter was fixed for evidence.

6. It appears from order sheets that on various

dates applications for adjournment were filed on record

and those were granted by learned Magistrate.

Then again, on 10.1.2013 Non Bailable

Warrant was issued against non-applicant/accused

which was subsequently cancelled by learned

Magistrate. Then again, the matter was fixed for

evidence. However, on 8.4.2013 also, in view of non-

appearance on the part of non-applicant/accused, Non

Bailable Warrant was issued and the matter was

adjourned on various dates for return of warrant.

Ultimately, on 25.9.2013, non-applicant/

.....5/-

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accused was present before the Court and he moved an

application for cancellation of warrant which was

granted by learned Magistrate.

Then, the matter was again fixed for evidence

time-to-time.

In the meanwhile, on 19.12.2013, the

complainant filed her evidence-on-affidavit below

Exhibit 27. Then, the matter was fixed for evidence.

However, order sheet shows that non-applicant/accused

was absent and, therefore, on 20.2.2014 Bailable Warrant

was issued against non-applicant/accused and on

various occasions the matter was transferred from one

Court to other. Ultimately, on 18.4.2016, since non-

applicant/accused was absent, again Non Bailable

Warrant was issued.

.....6/-

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7. Learned Magistrate then fixed the matter on

19.5.2016 for return of Non Bailable Warrant and for

evidence. On 19.5.2016, order sheet shows that the

complainant and non-applicant/accused were absent

and the case was fixed for evidence. However, nothing

could be gathered from order sheet dated 19.5.2016 as to

whether Non Bailable Warrant was served on 19.5.2016

and non-applicant/accused was present.

Then the matter was fixed for dismissal and

ultimately the matter was dismissed. However, order

sheet does not speak about the service of Non Bailable

Warrant nor non-applicant/accused remain present

before learned Magistrate.

8. Chronology events show that the entire fault

cannot be shouldered on the part of the complainant.

On various occasions, drastic steps were required to be

.....7/-

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taken by learned Magistrate for securing the presence

of non-applicant/accused. Therefore, in my view, this is

a fit case where this Court should exercise the powers

under Section 482 in order to give an opportunity to the

complainant to prove her case on merits.

9. Consequently, I set aside order passed by

learned Magistrate on 12.7.2016. Summary Criminal

Case No.26013 of 2011 stands restored to file subject to

costs of Rs.1,000/- (rupees one thousand only) to be

deposited with the High Legal Services Sub Committee

at Nagpur within a period of two weeks. The parties are

directed to appear before learned Magistrate on

17.7.2017. On the said date, both complainant as well

non-applicant Avinash Tukaramji Yaolakar shall remain

present to whom learned counsel Shri M.A Randive

represents. On the said date, if the receipt is placed on

.....8/-

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record before the Court showing deposit of said costs,

learned Magistrate shall proceed with the matter.

Since the matter is old, it is expected from

learned Magistrate to decide the case as early as

possible and within a period of six months from the

appearance of the parties.

The criminal revision application stands

allowed and disposed of.

JUDGE

!! BRW !!

...../-