Bombay High Court
M/S. Dwarakadhish Petroleum ... vs Arvind Tanaji Patil And Anr on 10 November, 2023
Bench: Prithviraj K. Chavan
2023:BHC-AS:34815 24-APPEAL-543-2013.doc
Shailaja
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.543 OF 2013
M/s. Dwarakadhish Petroleum Surur ] Appellant
Vs.
Arvind Tanaji Patil and another ] Respondents
.....
Mr. V.S. Talkute, for Appellant.
None for Respondent No.1.
Ms. G.P. Mulekar, A.P.P, for Respondent No.2-State.
.....
CORAM : PRITHVIRAJ K. CHAVAN, J.
DATE : 10th November, 2023.
JUDGMENT:
1. Heard learned Counsel for the appellant.
2. The complaint under section 138 of the Negotiable
Instruments Act, 1881 was filed by respondent No.1 bearing
No.238 of 2005 in the Court of Judicial Magistrate First-class, Wai.
3. On 6th August, 2005, learned J.M.F.C after examination of
the complaint under section 200 of the Code of Criminal
Procedure, 1973 (for short "Cr. P.C") and after going through the
documents on record and having heard learned Counsel who
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appeared for the complainant found that there was sufficient
material against respondent No.1-accused and therefore, issued
process under section 204 of the Cr. P.C. Thereafter, the matter
proceeded further as usual, sometimes, for want of presence of
complainant and sometimes for want of presence of the accused.
4. Copy of Roznama reveals that on 21st July, 2007, Non
Bailable Warrant was issued against respondent No.1-accused. On
18th August, 2007, the complainant along with Advocate was
present. However, the accused was absent. Similar was the position
on 28th September, 2007.
5. Subsequently, the learned Magistrate again issued Non
Bailable Warrant against accused and notice to the surety on 4 th
October, 2007.
6. Again, on 3rd November, 2007, complainant's Advocate
moved an application for issuing Non Bailable Warrant against the
accused along with a process to be served through R.P.A.D. A bare
look at the Roznama reveals that accused was persistently absent
despite issuance of Non Bailable Warrant by the Magistrate Court.
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7. On 5th July, 2008, the Police Inspector, Miraj Rural Police
Station was directed to execute Non Bailable Warrant as per
"Exhibit 26". It also transpires that the matter was placed before
Lok Adalat on 10th September, 2008. It, therefore, cannot be said
that the complainant was persistently absent to prosecute his
complaint. Since the accused was persistently absent almost on all
dates, suddenly, the learned Magistrate, unmindful of this fact
dismissed the complaint for want of prosecution by the impugned
order without stating anything about absence of the accused-
respondent No.1. Surprisingly, the Magistrate observed that
sufficient time was given to the complainant to secure the presence
of the accused who remained absent. This observation itself is not
in consonance with the provisions of law. The record reveals that
the complainant made all efforts to secure the presence of the
accused.
8. The impugned order, therefore, is patently illegal and,
therefore, needs to be quashed and set aside, accordingly, it is
quashed and set aside.
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9. The complaint is restored to the file. The complainant shall
appear before the learned Magistrate, Wai on 1 st December, 2023.
The learned Magistrate shall thereafter proceed further in
accordance with law and decide the complaint on merits by giving
due opportunity to respondent No.1-accused of being heard.
Respondent No.1-accused shall also appear before the learned
Magistrate on 1st December, 2023. The Magistrate shall thereafter
proceed to hear the complaint on day-today basis and shall make an
endeavour to dispose of the same by 22nd December, 2023.
10. The appeal stands disposed of in the aforesaid terms.
[PRITHVIRAJ K. CHAVAN, J.]
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