M/S Shivani Traders Thr. Its ... vs A.K.Corporation Thr. Its ...
2022 Latest Caselaw 7760 Bom

                                 1



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


         CRIMINAL APPLICATION (APL) NO. 922 OF 2022


        M/s Shivani Traders, through its
        Proprietor Arun Chandrabhanji Ladhi,
        aged about 45 years, Occupation -
        Business,    R/o     Shastry    Ward,
        Hinganghat, Tah. Hinganghat, District -
        Wardha.

                                                  ... APPLICANT

                             VERSUS
        A.K. Corporation, through its
        Proprietor, Ashokkumar
        Basudeoji Sarar, aged about 59
        years, occupation - Business, R/o
        Saraf Bhavan, Shiv Nagar,
        Wardha, Tah. And District -
        Wardha.

                                                ... ..NON-APPLICANT
_____________________________________________________________
       Shri A.S. Dhore, Advocate for the applicant.
       Shri Nitin Lalwani, Advocate for the non-applicant.
______________________________________________________________


                      CORAM          :   VINAY JOSHI, J.

                      DATED.         :   10.08.2022.


ORAL JUDGMENT :

Heard. ADMIT. The matter is taken up for final hearing

by consent of both parties.

2. The applicant who is convicted in Summary Criminal Case

No.3315 of 2013 for the offence punishable under Sections 138 of the

Negotiable Instruments Act, has preferred an appeal challenging the

conviction, however the appeal was dismissed in default, hence the

parties are before this Court.

3. As regards to the facts are concerned, there is no dispute as

the appeal against the conviction came to be dismissed in default,

which is also reflected in the impugned order dated 22.06.2022. The

learned Counsel appearing for the non-applicant (original complainant)

conceded the legal position that the appeal against conviction cannot

be dismissed in default. Obviously, if the applicant remaines absent, the

learned Trial Judge ought to have taken coercive steps or appointed

amicus curiae or would have disposed the appeal on its own merits.

Therefore, it is but necessary, to set aside the impugned order and

direct the learned Appellate Court to decide the appeal afresh as

permissible in law.

4. The learned Counsel appearing for the applicant undertakes

to appear and proceed with the appeal on the given date.

5. In view of that application is allowed. The impugned order

dated 22.06.2022 passed in Criminal Appeal No.94 of 2015 is hereby

quashed and set aside. The Criminal Appeal is restored on the file of

the Appellate Court. Both parties undertake to appear before the

Appellate Court on 07.09.2022, without any notice. The applicant shall

go on with the appeal on 07.09.2022 or within the next date which

would be fixed by the Appellate Court. The Appellate Court is directed

to decide the appeal within three months from 07.09.2022.

6. The application stands disposed of in above terms.

(VINAY JOSHI, J.)

Trupti

TRUPTI SANTOSHJI AGRAWAL

12.08.2022 16:23