Prem S/O Sukhlal Gaur vs Ravi L. Renkuntalwar
2021 Latest Caselaw 11267 Bom

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



                         CRIMINAL APPEAL NO. 180 OF 2020.


  Prem s/o Sukhlal Gaur,
  Aged about 40 years, Occupation
  Business, resident of Near
  Mahatama Fule Bazar, Lal School,
  Bajeriya, Nagpur, Taluq and
  District Nagpur.                                  ...             APPELLANT.


                                       VERSUS

  Shri Ravi L. Renkuntalwar,
  Aged about 40 years,
  Occupation - Business, resident of
  Plot No.34/1, Near Shastri School,
  Sindhi Colony, Clerk Town,
  Mekosabagh, Nagpur, Taluq
  and District Nagpur.                              ...               RESPONDENT.


                                   -----------------------
                Shri R.M. Patwardhan, Advocate for the Appellant.
                  Shri M. Ateeque, Advocate for the Respondent.
                                 --------------------


                                            CORAM : VINAY JOSHI, J.
                                            DATE  : AUGUST 18, 2021.




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  ORAL JUDGMENT                :



                Admit. Heard finally by consent of the learned Counsel

  appearing for the parties.


  2.            The appellant is challenging the order of acquittal passed by

  the trial Court vide order dated 21.04.2018.          Initially, the appellant

  has filed Summary Criminal Case No. 5246/2017, against the

  respondent for allegedly         committing an offence punishable under

  Section 138 of the Negotiable Instruments Act.            The trial Court has

  disposed the complaint on the ground that the appellant has failed to

  take steps to serve the accused, and in turn acquitted the accused in

  terms of Section 256 of the Code of Criminal Procedure.


  3.            The learned Counsel for the respondent has objected the

  appeal by contending that despite sufficient opportunity, the appellant

  had not taken steps for service upon the respondent/accused.


  4.            With assistance of both the learned Counsel, the entire record

  and proceedings was gone into. It reveals from the record that after

  institution of the complaint, the trial Court took cognizance and was




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  pleased to issue process against the respondent/ accused.                    It was

  followed by issuance of summons to the accused and the summon was

  made returnable on 31.07.2017.            On the returnable date, it was

  reported that the summon had returned unserved, hence, the matter

  was posted for taking steps on 07.10.2017. On that date itself the trial

  Court has passed an order on Exh.1 directing the appellant to take

  steps.      The said order bears reference that the complainant is

  continuously absent and is not taking steps against the accused.

  Contextually, record is produced from which it is revealed that in a

  mechanical manner such type of orders are passed.


  5.            Record indicates that thereafter, the matter was adjourned

  for taking steps on 14.12.2017, 07.02.2018,                   23.03.2018 and

  21.04.2018. Since steps were not taken on 21.04.2018, the matter

  came to be disposed of by impugned order.



  6.            The learned Counsel for the appellant would submit that the

  appellant was not informed by his Advocate about necessity to take

  steps. According to him, due to lapses on the part of his Advocate, the

  appellant should not be made to suffer.




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  7.            It reveals that on return of summon unserved, the matter was

  disposed of barely within a period of 6 months. True, there are some

  lapses on the part of the appellant, however, on technicalities, his case

  should not have been thrown out of the Court. Pertinent to note that

  till that date even the accused had not remained present in the Court,

  since he was not at all served. In view of that, interest of justice would

  be sub-served if one more opportunity is given to the appellant to go on

  with the matter with certain directions. Hence, the following order.



                                        ORDER

            (i)       The Appeal stands allowed.
            (ii)      The impugned order dated 21.04.2018 passed by the 28th

Joint Civil Judge, Junior Division and Judicial Magistrate First Class, Special Court for 138 N.I. Act, Nagpur in Summary Criminal Case No.5246/2017 is hereby quashed and set aside.

(iii) Summary Criminal Case No.5246/2017 is restored on the file of the concerned Magistrate at the same stage.

(iv) Respondent / accused is directed to appear suo-motu in the trial Court on 06.09.2021. The appellant shall file

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his evidence on affidavit on the said date only.

(v) The appellant shall also pay costs of Rs.2000/- to the respondent / accused on 06.09.2021 before the Trial Court.

JUDGE

Rgd