Bombay High Court
Unique Traders Pusad, Thr. Its ... vs Mohd. Saleem S/O Mohd. Yunus ... on 21 August, 2021
Bench: V. G. Joshi
21JUD apeal30.2021.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
Criminal Appeal (APEAL) No. 30/2021
Unique Traders, Pusad,
Through its Proprietor of:
Mohd. Iqbal s/o. Haji Noor Mohammad,
aged about 65 yrs,
Occupation : Business,
R/o. Nehru Ward, Pusad,
Tq. Pusad, Dist. Yavatmal. ... APPELLANT
.....VERSUS.....
Mohd. Saleem S/o Hohd. Yunus Agawan,
aged about 47 years,
Occupation : Business,
R/o Maharashtra Body Builders,
Transport Nagar, Walgaon Raod,
Amravati (Police Station, Walgaon) ... RESPONDENT
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Shri S. Raisuddin, Advocate for the appellant
None for the respondent
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CORAM: VINAY JOSHI, J.
DATED : 21/08/2021
ORAL JUDGMENT
Heard Shri S. Raisuddin learned Counsel for the appellant.
Though served, none appears for the respondent.
2. Considering the short issue involved in the matter, the
appeal is taken for final disposal.
3. Admit.
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4. This an appeal of original complainant challenging the
order of dismissal of private complaint passed by the Judicial Magistrate
First Class, Pusad (for short the "trial Court") dated 03.12.2018. Initially,
the appellant/complainant has filed private complainant bearing
Summary Criminal Case No. 1969/2012 for the offence punishable
under Section 138 of the Negotiable Instrument Act. It is alleged that the
respondent-accused has issued a cheque tuning to Rs.1,26,363/- drawn
with his banker towards discharge of liability. When the appellant-
complainant has deposited the cheque, it was dishonoured, hence, after
making necessary statutory compliances, a private complaint has been
filed.
5. On perusal of the complaint and documents tendered on
record, the learned Magistrate took the cognizance and issued the
process vide order dated 26.11.2012. In pursuance of summons, the
respondent-accused appeared in the proceeding and the complaint was
posted for recording of evidence. The learned Magistrate noted the
continuous absence of the appellant/complainant and ultimately, was
pleased to dismissed the complaint due to absence of complainant's
leading evidence.
6. The learned Counsel appearing for the appellant has argued
that the complainant did appeared in the trial Court on various dates.
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Most of the times, the case was adjourned due to absence of accused.
According to him, due to occasional unintentional absence of the
complainant, the trial Court has dismissed the complaint. It is argued
that the complainant has genuine cause to be decided on merits hence,
prayed to set aside the impugned order and for restoration of complaint.
7. Perused the entire proceeding alongwith Roznama. It
reveals that on several dates, the complainant and his Advocate were
present. On 09.10.2018, the complainant was present, however, at the
instance of the application filed by the accused, the matter was
adjourned to 30.10.2018. Roznama dated 30.10.2018 indicates that the
complainant and his Advocate were present, however, again the matter
was adjourned at the instance of the accused. It is pointed out that
though, the complainant's presence was noted in the Roznama, the trial
Court has passed an order on Exh. 1 stating that the complainant was
absent. On the following date due to the absence of the complainant,
the case was dismissed.
8. It is not the case that the complainant was throughout
absent in the proceeding. Sometime, the matter was adjourned due to
absence of respondent/accused. In these circumstances, the trial Court
ought to have given one more opportunity to the complainant to lead
evidence. The interest of justice demands that the matter should be
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heard on merits rather than disposing it on technicality. Since, there are
some lapses on the part of the complainant, the other side can be
compensated. It requires to be noted that though notice of appeal was
served on the respondent-accused, he remained absent. In that view,
following order:
ORDER
(a) The appeal stands allowed.
(b) The impugned order dated 03.12.2018 passed in Summary
Criminal Case No. 1969/2012 is hereby quashed and set aside.
(c) The complaint (Summary Criminal Case No. 1969/2012) is
restored at its original stage with directions to the
appellant/complainant to appear in trial Court on 06.09.2021.
(d) The appellant/complainant shall deposit cost amount of
Rs.3000/- in trial Court on or before 06.09.2021. The respondent/
accused is at liberty to withdraw the same.
(e) The trial Court to issue fresh notice to the accused on the
restoration of the complaint and proceed expeditiously in
accordance with law.
JUDGE
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