Damodar S/O Narayan Murkute And 2 ... vs Varsha Subhash Bhandarkar And 2 ...
2021 Latest Caselaw 637 Bom

   5appa 1.2021                              1



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

            CRIMINAL APPLICATION (APPA) NO. 1 OF 2021 IN
                CRIMINAL APPEAL NO............ OF 2021

  1. Damodar s/o Narayan Murkute,
     aged about 59 years, Occ. Business.

  2. Sau. Vaishali w/o Damodar Murkute,
     aged about 55 years, Occ. Housewife.

  3. Rakesh s/o Damodar Murkute,
     aged about 33 years, Occ. Business.

       All are R/o Central Railway Colony,
       Besa Road, Omkar Nagar, Nagpur.
                                             ...APPLICANTS/APPELLANTS

                    Versus

  1. Sau. Varsha Subhash Bhandarkar,
     aged about 50 years, Occ. Service as Teacher.

  2. Subhash Pandurang Bhandarkar,
     aged about 55 years, Occ. Service as Teacher.

       Both are R/o Tadala Road, Mul,
       Tah. Mul, District Chandrapur.

  3. State of Maharashtra,
     through P.S.O. Mul, District Chandrapur.
                                                            ...RESPONDENTS.

  Shri S.T. Harkare, Advocate for the applicants/appellants.
  Shri M.J. Khan, A.P.P. for respondent No.3.
                     .....

                               CORAM : PUSHPA V. GANEDIWALA, J.

DATED : JANUARY 12, 2021.

ORAL JUDGMENT :

Heard.

2. None for respondent Nos.1 and 2, though served.

3. This appeal is directed against the order dated

05/07/2018 passed by the JMFC, Mul, District Chandrapur in

S.C.C. No. 71/2015, whereby the complaint dated 26/03/2015

filed by the applicants - original complainants, came to be

dismissed for want of prosecution, which was filed for taking

cognizance against the respondents - accused for the offence

punishable under Sections 294 and 506 read with Section 34 of

the Indian Penal Code.

4. The matter was kept for verification. As the

complainants were absent, a report under Section 202 of the

Code of Criminal Procedure was called on 17/08/2015. The

said report was received on 24/09/2015. The complaint came

to be dismissed for want of prosecution by way of the impugned

order.

5. Perusal of Roznama of the proceedings, with the

assistance of learned counsel for the applicants, shows that for

most of the dates, the complainants were present. It is not the

case that the complainants and their counsel were absent

throughout. Roznama does appear about the number of chances

given to the complainants, however, at the same time, Roznama

does not reflect the lackadaisical attitude of the complainants

and their counsel. After giving last chance, when the junior

counsel appeared on behalf of the counsel for the complainants,

on the basis of memo of appearance, the impugned order came

to be passed.

6. In the opinion of this Court, the case does not

appear to be of complete case of non-prosecution. On the

contrary, Roznama reflects that for most of the dates, the

complainants were present.

7. As the complainants are prosecuting this matter

since 2015, in the opinion of this Court, one opportunity needs

to be given to show their bonafide in prosecuting the matter.

8. Hence, the Criminal Appeal is allowed. The order

dated 05/07/2018 passed by the JMFC, Mul, District

Chandrapur in S.C.C. No. 71/2015 is quashed and set aside.

S.C.C. No. 71/2015 is restored to the file. The parties to appear

before the JMFC, Mul, District Chandrapur on 18/02/2021.

JUDGE

******

Sumit