Bombay High Court
Bisani Trading Com. Thr Its Sole Prop. ... vs M/S. Maa Annapurna Agri Care Thr. Its ... on 9 September, 2024
2024:BHC-NAG:10408
58.appa.8.2024.Judgment.odt
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APPA) NO.8 OF 2024
AND
CRIMINAL APPEAL NO.505 OF 2024
Bisani Trading Company, through
its Sole Proprietor Ramesh
Harivallabh Bisani,
Age 74 Years, Occupation: Business,
R/o. Wardha,
Through its Power of Attorney Holder, (original Complainant)
Urmila Sachin Zade,
Age 35 Years, Occupation: Service,
R/o. Shiv Nagar, Wardha. ..... APPELLANT
// VERSUS //
1. M/s. Maa Annapurna Agri Care,
Through its Proprietor
Prabhakar Santoshrao Nehare,
R/o. At Post Adegaon, Taluka Hingna,
District Nagpur.
2. Shri Prabhakar Santoshrao Nehare,
Aged Adult, Occupation: Business
under name And style
"Maa Annapurna Agri Care", Being its
Proprietor, R/o. House No.399,
Ward No.2, At Post Adegaon,
Tahsil Hingna, District Nagpur. .... RESPONDENTS
----------------------------------------
Mr. D. U. Thakare, Counsel for appellant.
----------------------------------------
CORAM : URMILA JOSHI-PHALKE, J.
DATED : 09.09.2024
58.appa.8.2024.Judgment.odt
(2)
ORAL JUDGMENT :
1. Heard.
2. Leave granted.
3. By preferring this appeal, the appellant has
challenged the order dated 08.09.2023 passed by the learned
Judicial Magistrate, First Class, Court No.1, Wardha by which, the
case of the complainant is dismissed for want of prosecution and
accused is acquitted under Section 256 of the Code of Criminal
Procedure.
4. The appellant is the original complainant who filed a
complaint under Section 138 of the Negotiable Instruments Act,
contending that he is a business man and dealing with the
business of agricultural implements, fertilizers, seeds,
insecticides under the name and styled as "Bisani Trading
Company", Wardha and he is the sole Proprietor of the said
company. The accused No.2 also doing the same kind of
business under the name and styled as "Maa Annapurna Agri
Care" at Adegaon being its sole Proprietor, out of business
transactions some implements were obtained by the accused on
a credit an amount of Rs.2,92,420/- was due from the accused.
In discharge of legally enforceable debt, he has issued a cheque
bearing No.001667 for Rs.2,92,420/- dated 17.09.2019 drawn
58.appa.8.2024.Judgment.odt
Central Bank of India, Branch at Kavdas, in favour of the
complainant. The complainant has deposited the said cheque,
but the cheque was returned with endorsement "Funds
Insufficient". On 18.09.2019 after return of the said cheque, the
complainant has issued the notice through RPAD which was
received by the accused, but after receipt of the notice, he failed
to pay the amount and therefore, complainant constrained to file
complaint.
5. After filing of the complaint as the learned trial Court
has taken the cognizance and issued the process against the
accused. After issuance of the process, the accused failed to
appear before the Court and therefore, the warrant was issued
against the accused. On 17.10.2022, the application was filed by
the complainant for issuance of the warrant and accordingly
bailable warrant was issued against the accused. Thereafter, the
complainant has attended the proceedings on various occasions
but the accused remained absent. On 17.07.2023 and
04.09.2023 as complainant was absent, the matter was fixed for
dismissal order and accordingly, on 08.09.2023 it was dismissed.
6. Learned Counsel for the appellant submitted that the
presence of the complainant was not all required as the case was
fixed for return of the report of the execution of the warrant and
only on the two dates the complainant was absent, but the
58.appa.8.2024.Judgment.odt
learned trial Court erroneously acquitted the accused by
dismissing the complainant for want of prosecution. In fact, the
presence of the complainant was not at all required on the date
of the dismissal therefore, the order passed by the learned
Judicial Magistrate First Class, Wardha is erroneous and liable to
be set aside.
7. The learned Counsel for the appellant has made out a
case by showing that he has many arguable points in the present
appeal, therefore leave is granted.
8. Though notice is served upon the respondents, none
appears for the respondents. Perused the entire record appeal is
admitted. As already observed that after taking cognizance as
the respondents remained absent and therefore, on 17.10.2022
the complainant filed an application for issuance of warrant.
Accordingly, the bailable warrant was issued and the case was
fixed for return of the report of the said execution of the bailable
warrant. Only on 04.09.2023 and 17.07.2023 the complainant
was absent, prior to that on each and every date the
complainant has attended the proceedings. But the learned trial
Court has not considered the same, in fact, the presence of the
complainant was not at all required on the date of the dismissal
of the complaint. This Court has considered this aspect in the
case of Vijay Sanghavi Vs. State of Maharashtra and
58.appa.8.2024.Judgment.odt
another reported in 2016 (4) Mh.L.J. 223 and it is observed
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 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.
58.appa.8.2024.Judgment.odt
9. The similar facts are in the present case also, the
accused / respondents were served with the summons but they
failed to appear and therefore, warrant was issued. The roznama
further shows that only on two occasions the complainant was
absent and the case was dismissed, prior to that though the case
was fixed for the return of the warrant, the complainant and his
Counsel has attended the proceeding therefore, the Magistrate out
to have been more concerned with the non-execution of the warrant
of arrest by the police and ought to have considered that the report
regarding the service of warrant is not issued and therefore, the
absence of the complainant is not material on the relevant date.
Learned Magistrate ought to have considered that the presence of
the complainant was not at all required but instead of the same, he
has dismissed the complaint which is erroneous and therefore, the
order of acquittal deserves to be quashed and set aside. In view of
that, I proceed to pass following order:
ORDER
(i) The appeal is allowed.
(ii) The impugned order passed by the learned Judicial
Magistrate First Class, Court No.1, Wardha dated 08.09.2023
acquitting the accused is hereby quashed and set aside.
(iii) The matter is remanded back to the learned Judicial
Magistrate First Class, Court No.1, Wardha for retrial.
(iv) The parties to appear before the Judicial Magistrate
First Class, Court No.1, Wardha, on 25.09.2024.
58.appa.8.2024.Judgment.odt
(v) The parties to co-operate with the Court for the
disposal of the trial.
10. 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 17:56:58
