Bombay High Court
Dilip S/O. Amrutlal Gujrathi vs Mohd. Faiyaz S/O. Mohd. Yakoob on 30 June, 2017
Bench: V.M. Deshpande
1 apeal308.17.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.308/2017
Dilip s/o Amrutlal Gujrathi,
aged 59 yeas, Occ. Business,
r/o Gujrathipura, Balapur,
Tq. Balapur, Dist. Akola. .....APPELLANT
...V E R S U S...
Mohd. Faiyaz s/o Mohd. Yakoob,
aged 52 years, Occ. Teacher,
r/o Kagzipura, Balapur, Tq.Balapur,
Dist. Akola. ...RESPONDENT
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Mr. A. R. Deshpande, Advocate for appellant.
Mr. S. A. Mohta, Advocate for respondent.
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CORAM:- V. M. DESHPANDE, J.
DATED :- JUNE 30, 2017
ORAL JUDGMENT
1. Rule. Rule returnable forthwith. Heard finally by
consent of the parties.
2. The present appellant is the complainant. He has filed
the proceeding under the Negotiable Instruments Act against the
respondent. The said complaint was registered as S.C.C.No.
1/2011 and was pending on the file of J.M.F.C. Balapur. Vide
order dated 15.10.2013, the learned Magistrate passed the order
below Exh.-1 to the said case and dismissed the complaint for
want of prosecution and thereby the respondent was acquitted.
2 apeal308.17.odt
An application for restoration of the complaint was moved. The
learned Magistrate vide order dated 15.10.2013 i.e. on the same
day on which the complaint was dismissed in default, restored the
complaint.
3. The said order of restoration was questioned before the
learned revisional Court by the present respondent/accused on the
count that the learned Magistrate was not having any power to
restore the criminal complaint which was dismissed for want of
prosecution. The said was registered as Criminal Revision
No.231/2013 and on 10.12.2015, the learned revisional Court
allowed the said revision setting aside the order passed by the
learned Magistrate thereby dismissing the original complaint.
The aforesaid order is questioned before this Court.
4. The learned counsel for the respondent submitted that
the appeal itself is not maintainable in view of fact that the memo
of appeal shows that the appellant-complainant has not prayed for
quashing of the order dated 10.12.2015. However, he has only
prayed for quashing of order dismissing the complaint.
5. The chronology of events shows that the complaint filed
on behalf of the present appellant was not decided on its merit.
The submission of Mr. Mohta, learned counsel for the respondent,
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is too technical and it will not serve the cause of substantial
justice. Therefore, I allow the oral prayer made by the learned
counsel for the appellant for setting aside the order passed by the
revisional Court. The learned Magistrate ought to have given one
more chance to put forth his case.
6. In that view of the matter, order dated 15.10.2013
passed by J.M.F.C. Balapur together with order dated 10.12.2015
passed by the learned Additional Sessions Judge, Akola are
quashed and set aside with costs of Rs.2,500/-. S.C.C. No.1/2011
which was dismissed in default by the learned Magistrate, Balapur
is restored to file.
Parties to appear before the learned Magistrate on
15.07.2017. On the said date, the appellant/complainant shall
deposit Rs.2,500/- in the Court of J.M.F.C. Balapur and the
respondent shall be entitled to receive the said amount of costs. If
the amount of costs is not paid on the said date, the original order
of dismissing the complaint shall be revived.
Rule is made absolute in the aforesaid terms.
(JUDGE)
kahale
