Mah.State Financial ... vs State Of Maharashtra & 3 Others
2017 Latest Caselaw 6829 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 403 OF 2002


 Maharashtra State Financial Corporation,
 Incorporated under the State Financial
 Corporation Act, 1951, having its regional
 office at 3rd Floor, Udyog Bhavan, Opposite
 "VIKRIKAR BHAVAN", Civil Lines, Nagpur-1,
 herein represented through Shri Pratap 
 Amrutrao Gaikwad who has been duly 
 authorised in this behalf by a notification 
 in this regard.                                          ....       APPELLANT

                     VERSUS

 1) State of Maharashtra,                -       (Deleted)

 2) M/s Kitoo Photo Graphics Pvt. Ltd., 
     A Company incorporated under the 
     provisions of the Companies Act, 1956,
     having its registered office at Shop nos.
     24 and 2, Utkarsha Nirman, Sadar, 
     Nagpur.

 2) Smt. Preeti Kulbhushan Wadhwa,
     Aged about - Major, 
     Occupation - Managing Director of 
     the respondent No.2, 
     R/o C-1, Jaika Apartment, Civil Lines,
     Nagpur.

 3) Smt. Rupa Rakesh kochhar,
     Aged about - Major, 
     Occupation - Director of the respondent
     No.2, R/o 103, "Utkarsha Nirman", 
     Mangalwari, Nagpur.                                  ....       RESPONDENTS




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 ______________________________________________________________

           Shri A.M. Deshpande, Advocate for the appellant, 
                   None for respondent Nos. 2 to 4.
  ______________________________________________________________

                              CORAM :  ROHIT B. DEO, J.

                            DATED    :    6
                                               SEPTEMBER, 2017
                                            th



 ORAL JUDGMENT : 

Shri A.M. Deshpande, learned Advocate for the appellant

makes an oral request to delete State of Maharashtra from the array of

the respondent. It is not a necessary party. Hence, the request is

granted. Respondent 1 be deleted.

2. By order dated 01-9-2017, this Court made it amply clear

that the appeal would be decided on merits if either the appellant or

respondents 2 to 4 do not appear or workout the appeal.

Today when the matter is called out, the learned Advocate

Shri A.M. Deshpande appears on behalf of the appellant. There is no

appearance on behalf of respondents 2 to 4 who are the original

accused 1 to 3. However, the order dated 01-9-2017 records that in

the absence of the learned Counsel for the respondents/accused, Shri

A.V. Palshikar, learned Additional Public Prosecutor graciously offered

to assist this Court.

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3. In this situation, I have heard the learned Counsel Shri

A.M. Deshpande for the appellant. With the assistance of the learned

Counsel for the appellant Shri A.M. Deshpande and learned Additional

Public Shri A.V. Palshikar who as an officer of the Court was gracious

enough to assist the Court, I have carefully scrutinized the record. I

propose to dispose of the appeal on merits consistent with the

judgment of the Hon'ble Supreme Court in Bani Singh and others vs.

State of Uttar Pradesh reported in (1996) 4 SCC 720.

4. The appellant/financial institution is challenging the order

dated 22-3-2002, delivered by the learned Judicial Magistrate First

Class, Court 6, Nagpur in Criminal Complaint Case 933/1998, by and

under which the complaint under Section 138 of the Negotiable

Instruments Act, 1981 instituted by the present appellant is dismissed

in default and the respondents/accused have been

discharged/acquitted.

5. The order impugned does not clearly specify as to the

nature of the default. However, it is apparent that the complaint is

dismissed in default on the assumption that the complainant has not

taken steps to serve accused 1 and 2. Be it noted, that accused 3 who

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is alleged to be one of the partners of accused 1 is duly served.

6. I have closely scrutinized the record and I find the order

impugned to be indefensible. The record reveals that several attempts

were made by the original complainant/appellant to effect service on

the unserved accused. The process fee was lastly paid on 27-10-1999.

There is nothing on record to suggest that pursuant to the payment of

the said process fees, summons were issued by the Court registry or

then if the summons were indeed issued, why could the summons not

be served. The original record does not indicate any default and at any

rate a default warranting the rejection of the complaint instituted by

the State Financial Corporation.

7. I must also note that indisputably the original accused 3 is

served and at any rate, the learned Magistrate could not have rejected

the complaint as against the original accused 3.

8. I would, therefore, allow the appeal.

Criminal Complaint 933/1998 is restored to file.

The appellant/Maharashtra State Financial Corporation

shall take the steps to serve original accused 1 and 2 within two

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months of the record and proceedings reaching the Court of the

Magistrate.

The learned Magistrate is requested to decide the criminal

complaint on priority and as expeditiously as possible and in any

event within four months from the date the accused 1 and 2 are

served.

The registry is requested to ensure that the record and

proceedings reaches the trial Court within one week.

With these directions, the appeal is allowed and disposed

of.

JUDGE

adgokar