Bombay High Court
Jalgaon Janata Sahakari Bank Ltd. ... vs Satish Kashinath Wani on 31 January, 2024
2024:BHC-AUG:2034
CriAppeal-1063-2023
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 1063 OF 2023
Jalgaon Janata Sahakari Bank Ltd.,
Jalgaon, Head Office "Seva", 117/119,
Navi Peth, Jalgaon, Branch Station Road,
Jalgaon.
Through its Authorized Person/Signatory namely;
Dnyaneshwar s/o. Pundalik Andhale,
Age - 50 years, Occu. Service,
R/o. Jalgaon Janata Sahakari Bank Ltd.,
Branch Station Road, Jalgaon,
Taluka and District Jalgaon. ... Appellant
[Orig. Complainant]
Versus
Satish s/o Kashinath Wani,
Age: 54 years, Occu. Business,
R/o. 139, Navi Peth, Prakash Opticals,
Near Dena Bank, Jalgaon,
Taluka and District Jalgaon. ... Respondent
.....
Mr. Ankush N. Nagargoje, Advocate for the Appellant.
Mr. D. A. Bide, Advocate for the Respondent.
.....
CORAM : ABHAY S. WAGHWASE, J.
Reserved on : 25.01.2024
Pronounced on : 31.01.2024
JUDGMENT :
1. Original complainant, who instituted proceedings under Section
138 of the Negotiable Instruments Act, is assailing the order of
learned 2nd Jt. C.J.J.D. and J.M.F.C., Jalgaon passed below Exhibit 1
in SCC No. 973 of 2018 dated 16.09.2022, dismissing the above
CriAppeal-1063-2023
proceedings thereby acquitting present respondent from offence
under Section 138 of the Negotiable Instruments Act [NI Act].
2. Heard Mr. Nagargoje for the appellant as well as Mr. Bide for
the respondent.
3. Learned counsel for the appellant submitted that there is non-
appreciation of evidence and law by learned trial Judge. That, all
necessary ingredients to attract the offence were available in the
evidence adduced by the appellant. Transaction of loan was
established, however, only for want of prosecution, matter has been
dismissed for default. According to him, there was no fair opportunity
in this context and only because of above order, accused has been
acquitted and hence the appeal.
4. In answer to above, learned counsel for the respondent would
point out that there was deliberate attempt to prolong the matter.
That, in fact, accused is a guarantor and not borrower. That, in spite
of several dates, complainant failed to prosecute. According to him,
trial court has rightly discussed the above non-diligence of
complainant and so he prays to dismiss this appeal also.
CriAppeal-1063-2023
5. On hearing the submissions of both sides, it seems that present
appellant instituted proceedings under Section 138 of the NI Act
setting up a case that one Ramchandra Vilas Nimbalkar obtained loan
to the tune of Rs.3,00,000/-. He did not repay the loan as agreed and
when all efforts failed, the bank proceeded against the guarantor.
That, respondent had issued cheque to the tune of Rs.50,000/- but on
its presentation, it was returned dishonoured and therefore legal
notice was dispatched and on further failure to repay the amount
within stipulated period, proceedings under the NI Act were initiated.
6. Complainant under NI Act seems to be lodged on 03.02.2018.
Therefore, apparently complaint is filed in 2018. Record shows that
complaint was dismissed by order dated 16.09.2022 i.e. after four
years. The impugned order is as under:
"Perused record. This is an old case pending since long.
Today complainant is absent. Accused is present. Plea of the
accused is recorded in the year 2018. No effective steps are
taken by the complainant towards hearing of the case. It
appears that complainant is not interested to prosecute the
case. Hence following order is passed.
ORDER
1] Complaint is dismissed vide Sec.256 Cr.P.C.
2] Accused is acquitted."
CriAppeal-1063-2023
7. While hearing learned counsel for the appellant, it is tried to be
submitted that non-prosecution was due to Covid pandemic during
which courts were not functioning and therefore complainant could
not attend the matter and prosecute it. However, learned counsel for
the respondent objected by submitting that on every date matter
appeared on board but complainant failed to appear, lead evidence
and contest the matter.
8. It is clearly emerging that complaint is of 2018, no doubt Covid
Pandemic had affected and disrupted the court functioning but the
onset of Covid was in March 2020 and the lock-down and restrictions
which were clamped, were prevailing by June 2021 and thereafter
courts resumed functioning, both by physical mode as well as virtual
mode i.e. by hybrid mode. However, complaint seems to have been
dismissed on 16.09.2022 i.e. more than a year after resumption of the
courts. It is mandate of statute that the proceedings under Section
138 of the Negotiable Instruments Act are to be dealt and decided
expeditiously. Learned trial court has committed no error in passing
the impugned order. No case being made out, I proceed to pass the
following order :
CriAppeal-1063-2023
ORDER
The appeal is hereby dismissed.
[ABHAY S. WAGHWASE, J.]
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