Kishor Dayalal Doshi vs Shamrao V Bhong
2017 Latest Caselaw 7524 Bom

 apeal258of04.odt                          1



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


                     CRIMINAL APPEAL NO.258 OF 2004


 Kishor s/o. Dayalal Doshi,
 aged about 46 years, Occ. Business,
 R/o. Yavatmal,
 Tahsil & District Yavatmal                                 ...APPELLANT


                  ...V E R S U S...


 Shamrao V.  Bhong,
 aged about 46 years, 
 Occupation Business,
 R/o. Shahab nagar, Kalamb,
 Tahsil Kalamb, District Yavatmal                           ...RESPONDENT

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          Mr. Abdul Subhan, counsel for appellant.
          Miss. Prajakta Choudhari, counsel for respondent. 
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                                   CORAM:            ROHIT B. DEO, J. 

                                   DATE:                th
                                                     25    SEPTEMBER, 2017.


 ORAL JUDGMENT

The challenge is to judgment and order dated

29.12.2003 in Summary Criminal Case 1267 of 2003 delivered by

2nd Judicial Magistrate First Class, Yavatmal by and under which

the learned Magistrate was pleased to acquit the respondent /

accused of offence punishable under section 138 of Negotiable

Instruments Act, 1881.

2 The short submission of the appellant is that the

learned Magistrate committed a grave error in proceeding without

the cross examination of the complainant and fixing the complaint

for the statement of the accused.

3 Concededly, the complainant filed on record affidavit

Exh. 20. The counsel for the accused after putting one question to

the witness in cross examination requested for adjournment,

which request was granted. The cross examination of the

complainant was adjourned to 17.12.2003. A perusal of record

reveals that since the complainant was not present in the Court at

11.00 a.m. sharp, as he was required to do under the order by

which the hearing was adjourned, the learned Magistrate waited

till 1.00 p.m. and then by order below Exh. 41 and Exh. 20 closed

the evidence of the complainant. A finding is recorded that

complainant did not wish to produce himself for cross-

examination.

4 The hearing was adjourned to 29.12.2003 for

recording the statement of the accused. The complainant moved

an application Exh. 32 contending that since he was not well on

17.12.2003, he may permitted to submit himself for cross

examination. This request is rejected by the learned Magistrate,

the statement of the accused is recorded and the judgment was

delivered on 29.12.2003.

5 The judgment is indefensible. The learned Magistrate

has obviously decided the complaint in inappropriate haste. The

record is self speaking and no further observation from this Court

is necessary.

The judgment and order impugned is set aside.

The proceedings are remitted to the Trial Magistrate for

fresh disposal in accordance with law.

The parties shall appear before the learned Magistrate on

20.10.2017. On that day, the learned Magistrate shall fix the next

date of hearing on which the complainant shall be cross examined

for and on behalf of the accused, if the accused is so advised.

Needless to say, both the parties are at liberty to lead such

oral and documentary evidence as they may deem fit.

The learned Magistrate is requested to decide the complaint

as expeditiously possible and in any event within six months from

the appearance of the parties.

The appeal is allowed in the above terms.

JUDGE

R.S.Belkhede, Personal Assistant.