Shri Anant Tatyaba Sawant vs The State Of Maharashtra And ...
2017 Latest Caselaw 3703 Bom

YBG                                                                                  1
                                                                       208-apeal-967-01




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO.967 OF 2001

Anant Tatyaba Sawant
Indian Inhabitant, Hindu, aged
61 years, residing at B-15/115,
Chitrarnjan Nagar, Rajawadi,
Ghatkopar (East), Bombay 400077              ..    Appellant

       Versus

1]     State of Maharashtra

2]     Smt. Vimal Madhukar Shingare,
       Indian Inhabitant, an adult,
       Hindu, residing at E.S.I.S.
       Hospital Quarters, Building
       No.13, Room No.2, Wagle
       Estate, Thane                         ..    Respondents


None for appellant
Mr. P.H.Gaikwad, APP for State.


                         CORAM      :   N.M.JAMDAR, J.

                         DATE       :   28th June 2017.


ORAL JUDGEMENT:-

The appellant has challenged the order passed by the

learned Metropolitan Magistrate, Vikhroli, Mumbai dated 1 st

November 2001 dismissing the complaint filed by the appellant

208-apeal-967-01

under section 138 of Negotiable Instruments Act (N.I.Act for short)

for default. The appellant filed a complaint under section 138 of the

N.I. Act on the ground that a friendly loan of Rs. 2 lakhs was given to

the respondent. The respondent returned the same by way of

cheque, which was returned dishonoured when presented and

consequently a legal notice was issued on 21 st February 2000. The

complaint was filed on 10th April 2000.

2] On 1st November 2001, the learned Magistrate, after observing

that the appellant was absent when the matter was called out, and

the appellant had remained absent continuously and no steps have

been taken to prosecute the complaint, dismissed the complaint. An

application was made by the appellant for restoration of the

complaint. This application was also rejected, since the appellant

did not remain present. The complaint was filed on 10 th April 2000.

The complainant thereater has filed this present appeal.

3] The appeal was admitted on 13 th June 2002 and, thereafter,

the appeal appeared on board on 20 th August 2015, 5th October

2015, 9th October 2015, 27th November 2015 and 16th June 2017.

208-apeal-967-01

On none of these dates the appellant has remained present. On 9 th

October 2015, this Court observed that the adjournment is granted

by way of last chance.

4] The appellant had sought to set aside the order of acquittal

which was passed in view of dismissal of complaint for default. In

the appeal memo, the appellant has put forth certain legal grounds

and has sought to urge that though the complainant has remained

absent, the court must consider whether personal attendance of

complainant was essential on that date for progress of case. The

appellant, however, has not given any satisfactory explanation

regarding his absence on the dates for which the complaint and

restoration were dismissed.

5] It is clear from the roznama that on the dates preceding the

dismissal of the complaint, the appellant had not remained present.

This conduct of the appellant has continued even in this appeal as

continuously the appellant is absent. The least the appellant could

have done is to prosecute the present appeal diligently. This is an

abuse of the process of law. The conduct of the appellant in this

208-apeal-967-01

appeal fortifies the view taken by the learned Magistrate and I find

no error in the order passed by the learned Magistrate dismissing

the complaint for default for lack of any cogent explanation. The

appeal is accordingly dismissed

( N.M.JAMDAR, J.)