Bombay High Court
Sadananad Narayan Nihave vs Anil Ramchandra Walvekar on 1 March, 2024
2024:BHC-AUG:4597
{1} ALP 121 OF 2023
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPLICATION FOR LEAVE TO APPEAL BY PVT. PARTY
NO. 121 OF 2023
Sadanand Narayan Nihave
Age: 46 years, Occu.: Business,
R/o.Labour Colony,
Tq. and Dist.Aurangabad. ..Applicant
(Orig. Complainant)
Versus
Anil Ramchandra Walvekar
Age: 49 years, Occu.: Business,
R/o. Building no.32, Room No.284,
Eknath Nagar Road,
Near Ganpati Temple, Aurangabad. ..Respondent
(Orig. Accused)
...
Advocate for Applicant : Mr. Gautam J. Pahilwan
Advocate for Respondent : Mr.Chaitanya Deshpande h/f. Mr. Govind
M. Sharma
...
CORAM : ABHAY S. WAGHWASE, J.
DATE : 01 MARCH, 2024
PER COURT :-
1. Above application for leave is an off-shoot of order passed by
the learned 10th Additional Chief Judicial Magistrate, Aurangabad on
20-07-2023 in SCC No.1392 of 2019 thereby acquitting present
respondent from offence under Section 138 of the Negotiable
Instruments Act (NI Act).
2. Learned Counsel for the applicant submitted that SCC No.1392
{2} ALP 121 OF 2023
of 2019 was filed because of dishonour of cheque issued by the
respondent. After completing all formalities and verification, learned
trial Court has also issued process. However, by order dated
20-07-2023 complaint has been dismissed and respondent is
acquitted. It is pointed out that infact the learned trial Court has not
considered Roznama and previous order passed on exhibit 20 dated
13-09-2022, and in hurried manner matter is disposed of, thereby
causing injustice to the complainant and hence, he prays to grant
relief to question the said impugned judgment and order dated
20-07-2023.
3. Learned Counsel for the respondent strongly opposed by
pointing out that summary criminal case was instituted in 2019.
That repeatedly complainant failed to appear and contest his
proceedings. That even otherwise, necessary ingredients for
constituting offence under Section 138 of the NI Act were not
available and therefore, learned trial Court has committed no error in
acquitting accused.
4. After hearing submissions of both the sides, it seems that
proceedings under Section 138 of the NI Act was instituted by
present applicant contending that he is in clothe business and out of
friendly relation, he extended hand-loan to accused respondent and
{3} ALP 121 OF 2023
towards its repayment, cheque was issued by respondent, but it was
dishonoured and therefore, after issuing notice, proceedings under
Section 138 of the NI Act was instituted.
5. It seems that the learned trial Court on 25-01-2019 perused
complaint, its contents and on getting convinced, directed to issue
process against accused. However, by order dated 20-07-2023,
learned 10th Additional Chief Judicial Magistrate, dismissed the
complaint holding that complainant as well as his Advocate are
remaining absent for last six dates and thereby acquitted accused.
Therefore, apparently complaint has been dismissed for want
of prosecution. In the interest of justice as a fair chance, application
for leave to file appeal is required to be allowed. Accordingly,
following order is passed :
ORDER
I. The application stands allowed in terms of prayer
clause "A".
II. Leave is granted to file Appeal.
III. Registry to verify and register the Appeal.
IV. List the appeal for further consideration on
15-03-2024.
( ABHAY S. WAGHWASE )
JUDGE
SPT
