Bombay High Court
Umang Ferro Alloys Pvt Ltd Having Regd. ... vs M/S Krishna Enterprises Thr. Its Prop. ... on 9 September, 2024
2024:BHC-NAG:10365
65.apeal.490.2019.Judgment.odt
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.490 OF 2019
Umang Ferro Alloys Pvt. Ltd.,
Having Registered Office,
R/o. R. R. Plaza, Plot No.1,
10 No. Puliya, Kamptee Road,
Baizan Bagh, Nagpur,
District Nagpur - 440017
through its Managing Director
Shri Sanjay s/o Dhanendra Kasal,
Age 49 Years. ..... APPELLANT
// VERSUS //
M/s. Krishna Enterprises,
through its Proprietor
Shri Ganpati Murli Krishna Raju,
Aged about 37 Years,
Occupation Business,
Registered Office at Flat No.303,
Sai Vihar, Complex Gudiyari Road,
Srinagar, Raipur (C.G.) - 492009. .... RESPONDENT
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Mr. S. A. Dutonde, Counsel for appellant.
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CORAM : URMILA JOSHI-PHALKE, J.
DATED : 09.09.2024
ORAL JUDGMENT :
1. Heard.
2. Admit.
65.apeal.490.2019.Judgment.odt
3. By preferring this appeal, the appellant has
challenged the order passed by the 29 th Joint Civil Judge Junior
Division and Judicial Magistrate First Class, Special Court for 138
of Negotiable Instruments Act, by which the accused is acquitted
under Section 256 of the Code of Criminal Procedure.
4. The complainant has filed the Criminal Complainant
under Section 138 of the Negotiable Instruments Act. The
complainant is a Private Limited Company, named and styled as
"UMANG FERRO ALLOYS PVT. LTD." having registered Office, at
R. R. Plaza, Plot No.1, Nagpur and dealing with the business of
trading minerals and Ferro-Alloys. The accused is sole Propriety
firm and is also involved in the business of trading Manganese-
ore, having its Office at Raipur (Chhattisgarh). The complainant
and the accused are having business relations since more than
one year and the accused was regular and punctual in making
the payment for materials purchased and therefore, the
complainant has supplied 30 metric tons of Manganese for
Rs.5,70,367/-. The accused promised to transfer the amount
within seven days through RTGS but failed to do so and
therefore, on demand the accused has issued a cheque bearing
No.009398 of Axis Bank Ltd., Branch Urla, dated 20.11.2013 of
Rs.5,00,000/-. The said cheque was deposited by the
complainant but it was not honoured and returned with
65.apeal.490.2019.Judgment.odt
endorsement "Funds Insufficient". As the cheque was
dishonoured the complainant has issued a notice to the accused.
After receipt of the notice also, the complainant has not received
the amount and therefore, he constrained to file the complaint.
5. The learned trial Court has taken the cognizance of
the said complaint on 25.03.2014. On taking cognizance,
process was issued and the summons was issued to the accused.
On 06.07.2017 the fresh summons was issued to the accused
but report of the same was not received and case was fixed for
return of the summons. After issuance of the summons, the
matter was listed on 14.09.2017 and thereafter on 27.11.2017
by observing that the complainant failed to take steps though
sufficient opportunity is granted and dismissed the complaint for
want of prosecution under Section 256 of the Code of Criminal
Procedure.
6. Being aggrieved and dissatisfied with the same,
present appeal is preferred by the complainant who is the
appellant. Learned Counsel for the appellant pointed out that
the observation of the trial Court that from last 4 to 5 dates
complainant has not taken steps is contrary to the roznama in
fact, the roznama shows that on 06.07.2017 the summons was
issued and but the report was not received. After 06.07.2017
the matter was fixed for 14.09.2017 and thereafter, on
65.apeal.490.2019.Judgment.odt
27.11.2017. As far as the absence of the complainant is
concerned, it is only for the two dates. But the presence of the
complainant was not required as the report of the summons is to
be received. Thus, the observation of the trial that the
complainant failed to take steps and remained absent and
prolonging the matter is contrary to the record and therefore,
the order passed by the learned Magistrate deserves to be
quashed and set aside.
7. In support of his contention he placed reliance on
Vijay Sanghavi Vs. State of Maharashtra and another
reported in 2016 (4) Mh.L.J. 223 wherein para No.28 this
Court has considered that the provisions under section 256 of
the Code are meant to ensure that the complainant does not
drag on the proceedings without taking any real interest in
prosecuting the matter. The provisions of section 256 of the
Code come in picture after a summons has been issued and after
a trial is expected to commence. The absence of the complainant
would result in the Court being unable to proceed with the trial
and that is why to prevent the harassment of the accused, who
would be required to be present before the Magistrate without
there being any prospects of the case proceeding further, that the
said Section has been, apparently, enacted. When in a given case
the accused is served with a summons, but does not remain present
65.apeal.490.2019.Judgment.odt
before the Court and a warrant is issued, but still not executed, it
would not be just and proper to focus on the absence of the
complainant and order the acquittal of the accused, who has defied
the process of the Court. When the process to compel the
appearance of the accused was undertaken by the Magistrate and
was incomplete, the Magistrate ought to have been more concerned
with the non-execution of the warrant of arrest by the police and
ought to have questioned the police in that regard instead of getting
rid of the case by focusing on the absence of the complainant.
8. This observation is squarely applicable to the present
case also as the roznama shows that the summon was issued on
06.07.2017 in pursuance of the order issued on 05.07.2017.
Thereafter, case was fixed for return of the summons on
14.09.2017. The roznama nowhere discloses whether any report is
received by the Court regarding the service of the summons. Thus,
the learned trial Court has not considered that it was for the return
of the report regarding the service of the summons and therefore,
presence of the complainant was not required, but ignoring the
same, and ignoring the object behind Section 256 of the Code of
Criminal Procedure the case was dismissed. Thus, the complaint of
the complainant was dismissed on a technical ground and therefore,
the appeal deserves to be allowed. Accordingly, I proceed to pass
following order:
65.apeal.490.2019.Judgment.odt
ORDER
(i) The appeal is allowed.
(ii) The impugned order dated 27.11.2017 passed by the
learned 29th Joint Civil Judge Junior Division and Judicial
Magistrate First Class, Special Court for 138 of Negotiable
Instruments Act, acquitting the accused is hereby quashed
and set aside.
(iii) The matter is remanded back to the 29th Joint Civil
Judge Junior Division and Judicial Magistrate First Class,
Special Court for 138 of Negotiable Instruments Act,
Nagpur for retrial.
(iv) The parties to appear before the 29th Joint Civil Judge
Junior Division and Judicial Magistrate First Class, Nagpur
on 25.09.2024.
(v) The parties to co-operate with the Court for disposal of
the trial.
9. The appeal is disposed of.
(URMILA JOSHI-PHALKE, J.)
Sarkate.
Signed by: Mr. A.R. Sarkate
Designation: PA To Honourable Judge
Date: 18/09/2024 11:59:02
