Bombay High Court
Baliram S/O. Ramchandra Patil vs Ashok S/O. Pundalik Patil on 23 June, 2017
Bench: V.L. Achliya
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 130 OF 2017
Baliram Ramchandra Patil,
Age: 55 years, Occu-Agri. & Business,
R/o.Pawanchowk, Amalner
Dist.- Jalgaon. ..... APPELLANT
V E R S U S
Ashok Pundalik Patil,
Age : 48 years, Occu- Service,
R/o.-19, New Bhagwan Nagar,
Near Kashi Vishweshwar Mandir,
Jalgaon, Dist. Jalgaon. ..... RESPONDENT
....
Mr. B.R. Waramaa, Advocate for Appellant.
The respondent though served, absent.
....
CORAM : V.L.ACHLIYA, J
DATE : 23.06. 2017.
ORAL JUDEMENT :
1. By the present appeal, the appellant-complainant has challenged
the impugned order dated 15.12.2015 passed in Sum. Criminal Case No.
358/2014 by J.M.F.C Amalner Dist. Jalgaon, whereby the learned judge has
dismissed the complaint and acquitted the respondent/accused in default of
taking steps to serve the accused by exercising power under section 256 of the
Code of Criminal Procedure.
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2. Heard the learned counsel for the appellant. The respondent
though served failed to appear in spite of notice of final disposal sent and served
upon him.
3. The learned counsel for the appellant assailed the impugned order
with contention that order is not sustainable in law for the sole reason that
powers under section 256 of the Code of Criminal Procedure could not have been
exercised by the learned Magistrate as the summons was not served upon the
accused. He submits that appellant has taken all necessary steps to serve the
respondent/accused. Notice sent through the process of court as well as by Reg.
Post. A.D could not be served as respondent has deliberately avoided to accept
the service by assigning the reason that there is discrepancy in his name
mentioned in the notice though the notice was earlier served upon him in same
name and address.
4. In order to appreciate the submissions advanced, I have perused record
and proceeding. Perusal of the record reveals that the complaint had filed
complaint under section 138 of the Negotiable Instrument Act. On due
consideration of the fact pleaded in the complaint and documents relied, in
support of the complaint the learned Magistrate has passed order to issue
process under section 138 of the Negotiable Instrument Act against the
accused/respondent. The order was passed on 01.10.2014. The complainant has
paid the process fees. Later on notice was also send through Reg. Post. A.D.
Notice sent to the respondent/accused returned with report that the person
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found at the address refused to accept the notice by assigning the reason that
his name is not ''Ashok Pundalik Patil'' but his name is Ashok Pundlik Saindane.
After receipt of report the case was posted for taking steps. Due to non
appearance of the complainant the complaint came to be dismissed.
5. The impugned order reads as under :-
'' When called complainant and his Advocate absent.
On perusal of record, it appears that complainant is
absent since long and failed to take steps. On
28.08.2015 an order was passed below Exh.1 and
thereby last opportunity was provided to the
complainant. Even, thereafter also complainant failed
to appear before court and to take necessary steps. It
seems that accused is not interested to proceed with
the matter. Therefore, no purpose will serve to keep
matter pending. Hence complainant stand disposed
off in view of section 256 of Code of Criminal
Procedure. Accused stand acquitted."
On the face of record the impugned order is not sustainable in law
for the sole reason that stage has not reached to exercise power under section
256 of the Code of Criminal Procedure to dismiss the complaint and acquit the
accused. The order of the dismissal of the complaint and acquittal of accused
u/sec. 256 of the Cr.P.C can be passed only after the process was issued and the
accused had appeared in the matter but the complainant failed to appear on the
date listed for hearing of the case. In the instant case respondent/accused has not
served nor appeared before the Court. So also the case was not listed for hearing.
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The case was lying at the stage of the service of the summons. In default of
taking steps at the most the complaint could have been dismissed by exercising
the powers under section 204(4) of the Code of Criminal Procedure & not in
exercise of powers under section 256 of the Code of Criminal Procedure.
Therefore, the impugned orders is not sustainable in law. Since the impugned
order could not have been passed in exercise of the powers under section 256 of
the Code of Criminal Procedure the order deserves to be set-aside. In this view
the appeal liable to be allowed. I am, therefore, inclined to pass the following
order :-
ORDER
I. Criminal appeal is allowed in terms of the prayer clause-
A. Impugned order dismissing the complaint is set aside.
The case is restored to its original number.
II. The case is remanded to the trial court. The appellant is
directed to appear before the trial court on 1 st day of
August, 2017.
III. In case the appellant appears before the trial court and
take necessary steps, then trial court is directed to
proceed further and pass necessary order to effect service
of summons to respondent/accused.
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IV. In case appellant fails to appear and take steps,to serve
the respondent then the trial court may pass
appropriate order.
V. Record and proceeding be sent to trial court.
VI. The appeal is disposed off in the above terms.
[V.L.ACHLIYA, J.]
YSK/Cri.A. No. 130.17
