Bombay High Court
Bharat Nana Joshi vs Meena Naresh Matkar And Anr on 18 January, 2018
Bench: A.M. Badar
(3)APEALNo.1622015(J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.162 OF 2015
Bharat Nana Joshi ... Appellant
V/s.
Meena Naresh Matkar & Anr. ... Respondents
.....
Mr.Vikas Kapile, Advocate for the Appellant.
Ms.Aditi Naikare i/b. Mr.Pradeep J. Thorat, Advocate for the
Respondent No.1.
Mr.V. V. Gangurde, APP for the Respondent/State.
....
CORAM : A.M.BADAR J.
DATED : 18th JANUARY 2018.
ORAL JUDGMENT :
1 Admit.
2 Heard finally with the consent of the parties as Record
and Proceedings are already called vide Order dated 19th April
2017.
3 By this appeal, the appellant/original complainant is
challenging the Order dated 4th December 2014 passed by the
Metropolitan Magistrate, 43rd Court, Boriwali, Mumbai dismissing
his complaint bearing No.4300964/SS/2009 for want of
prosecution.
Gaikwad RD 1/5
(3)APEALNo.1622015(J)
4 The appellant/original complainant has preferred a
complaint alleging the offence punishable under Section 138 of
the Negotiable Instruments Act, 1881 against the respondent
No.1/original accused. On 08/07/2009, verification statement of
appellant/original complainant came to be recorded by the
learned Metropolitan Magistrate and the process was directed to
be issued for securing appearance of the respondent/original
accused. Accordingly, the respondent No.1/original accused
appeared before the learned Metropolitan Magistrate and his plea
came to be recorded on 17/10/2012. He pleaded not guilty and
claimed trial. The criminal complaint was then fixed for recording
evidence of the complainant. When the criminal complaint was
fixed on 21/08/2014, the learned trial Magistrate recorded
absence of the appellant/original complainant as well as his
advocate and kept the criminal case for dismissal Order on
04/12/2014. On 04/12/2014, the complaint came to be
dismissed by the impugned Order for want of prosecution and the
respondent No.1/original accused came to be acquitted.
5 I heard the learned Advocate appearing for the
appellant/original complainant. He drew my attention to the
Order sheets maintained by the learned trial Magistrate and
submitted that on almost every occasion, the appellant/original
complainant along with his Advocate was present for adducing
evidence. However, no evidence was recorded and ultimately for
one absence, the complaint came to be dismissed.
Gaikwad RD 2/5
(3)APEALNo.1622015(J)
6 The learned Advocate appearing for the respondent
No.1/original accused justified the impugned Order of dismissal of
the criminal complaint by contending that it was duty of the
original complainant to attend the trial Court for adducing
evidence diligently and as he failed to attend, the complaint was
rightly dismissed.
7 I have carefully considered the rival submissions and
also perused the Record and Proceedings. The Record and
Proceedings reveals that after recording plea of the respondent
No.1/original accused, on almost all occasions, the complainant
was present with his Advocate or either Advocate for the
complainant was present. It is seen that though the complaint was
registered in the year 2009, no evidence was recorded by the
learned trial Magistrate till August 2014 though the complaint was
fixed from time to time. The Roznama/Order sheets does not
show that adjournment of the said criminal complaint, at any
time, was at the instance of the appellant/original complainant.
Even on the date prior to recording absence of the appellant and
his counsel i.e. on 10/06/2014, as seen from the Roznama/Order
Sheets, the appellant/original complainant was present with his
Advocate so also the respondent/original accused was present
with his Advocate. The Roznama/Order sheets shows that the
complaint was adjourned to 21/08/2014 without there being any
request for adjournment from either side. However, on
Gaikwad RD 3/5
(3)APEALNo.1622015(J)
21/08/2014, the appellant/original complainant and his Advocate
were absent and then the Criminal complaint was kept for
dismissal order on 04/12/2014. On 04/12/2014, the complaint
came to be dismissed.
8 Primary function of the Court is to adjudicate the
dispute on its own merits rather than adhering to the technicalities
of law. In the case in hand, it is seen that at no point of time
either the appellant/original complainant or his Advocate had
applied for adjournment. It cannot be said that they are guilty of
protracting the trial of the complaint lodged by them. In this view
of the matter, only one day's absence ought not to have entailed
dismissal of the complaint. In this view of the matter, the
impugned Order passed by the learned Metropolitan Magistrate
below Exhibit 1 on 04/12/2014 dismissing the complaint filed by
appellant/original complainant cannot be justified. Therefore, the
Order :
(i) The appeal is allowed.
(ii) The impugned Order passed by the learned Metropolitan
Magistrate below Exhibit 1 in Criminal Case bearing
No.4300964/SS/2009 is quashed and set aside.
(iii) The complaint is restored to the file of the learned
Metropolitan Magistrate, Boriwali, Mumbai with a
direction to decide it according to law.
Gaikwad RD 4/5
(3)APEALNo.1622015(J)
(iv) The appeal accordingly stands disposed of.
(v) The Record and Proceedings be sent back to the learned
Metropolitan Magistrate forthwith.
(vi) Parties to appear before the learned trial Magistrate on
20th February 2018.
(A.M.BADAR J.)
Gaikwad RD 5/5
