Bombay High Court
Shri Ganesh Chandra Das vs Shri Mahamegha Bahan Dash on 9 September, 2024
2024:BHC-NAG:10368
53.appa.546.2019.Judgment.odt
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APPA) NO.546 OF 2019
AND
CRIMINAL APPEAL NO.506 OF 2024
Shri Ganesh Chandra Das,
Aged about 51 Years,
Occupation : Business,
R/o. Plot No.76, Misal Layout,
Jaripatka, Nagpur - 440014. .... (Original complainant)
[P.S. Jaripatka, Nagpur] ..... APPELLANT
// VERSUS //
Shri Mahamegha Bahan Dash,
Aged about .... Years,
Occupation : Service,
R/o. Qtr. No.IC/74, South Balanda,
Talcher, District Angul,
Pin - 759116, ODISHA
(P.S. Colliery, Distt, Angul)
Office Add: Project Officer,
Jagannath Colliery, .... (Original Accused)
South Balanda, Talcher. .... RESPONDENT
----------------------------------------
Mr. P. S. Khubalkar, Advocate for the applicant/appellant.
Mr. Y. A. Kullarwar, Advocate for the respondent.
----------------------------------------
CORAM : URMILA JOSHI-PHALKE, J.
DATED : 09.09.2024
ORAL JUDGMENT :
1. Heard.
2. Admit.
53.appa.546.2019.Judgment.odt
3. By preferring this application, the appellant is seeking
leave to prefer an appeal against the acquittal passed by the 19 th
Joint Civil Judge Junior Division and Judicial Magistrate First Class
and Special Court for 138 Negotiable Instruments Act, Nagpur, who
dismissed the complaint in view of Section 256 of the Code of
Criminal Procedure and acquitted the accused.
4. Learned Advocate Mr. Khubalkar for the applicant
submitted that the applicant is the original complainant who filed a
complaint under Section 138 of the Negotiable Instruments Act
before the learned Judicial Magistrate First Class, Nagpur alleging
that the complainant is originally resident of Odisha and out of
friendly relationship with the accused, he has handed over the hand
loan amount of Rs.3,71,000/- to the respondent. The respondent
agreed to pay the amount, but he has not paid and therefore,
demand was made. On making the demand, the accused has issued
a cheque bearing No.121664 of Central Bank of India, Talcher
branch, Odisha and the said cheque was deposited by the
complainant but it was returned with an endorsement "Funds
Insufficient", therefore, notice was issued to the respondent on
01.04.2013, after receipt of the notice also the respondent has not
paid the amount and therefore, he constrained to file the complaint.
53.appa.546.2019.Judgment.odt
5. The learned Magistrate has taken cognizance of the
complaint and issued a process against the present respondent.
Though the present respondent was served with the notice, he
failed to appear and therefore, warrant was issued. After repeated
efforts, the warrant was not executed against the respondent. The
case was fixed for return of the warrant and therefore, the
complainant has not attended the proceeding. But learned trial
Court has not considered that the attendance of the complainant
was not required as matter is fixed for return of the warrant from
the Police Station. But learned trial Court held that no effective
steps are taken by the complainant and acquitted the accused
under Section 256 of the Code of Criminal Procedure which is
contrary to the law. 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 this Court has
considered the provisions under Section 256 of the Code of Criminal
Procedure and held that 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.
6. Per contra, learned Advocate for the respondent
submitted that after sufficient opportunity, no effective steps are
53.appa.546.2019.Judgment.odt
taken by the present applicant and therefore, the case was
dismissed. He placed reliance on Prema Ramanand Hattangadi
Vs. State of Maharashtra and another reported in 2012 (6)
Mh.L.J.210 wherein it is held that complaint filed against accused
persons dismissed in default and respondents acquitted of the
alleged offence. Complainant and her advocate were continuously
absent. Trial Court did not commit any error in dismissing the
matter for want of prosecution.
7. After hearing both the sides and on perusal of the
roznama, it reveals that after taking cognizance the process was
issued against the present respondent. Thereafter, the accused
remained absent and therefore, application for issuance of the
warrant was filed. On various occasions, the Advocate for the
complainant was present and was looking after the proceedings. On
21.01.2019 both parties and Advocate were absent and case
adjourned for dismissal. On 16.02.2019 also the complainant and
the Advocate absent and on that day itself the complaint was
dismissed. Thus, it is apparent that on the day of the dismissal of
the complaint, the presence of the complainant was not required as
it was awaiting the report of service of the warrant. Learned
Advocate for the applicant has made out a case by showing that the
presence of the complainant was not at all required, in view of that
the order passed by learned trial Court appears to be erroneous, as
53.appa.546.2019.Judgment.odt
learned Advocate for the applicant has made out the grounds to
grant leave therefore, leave is granted.
8. After considering the facts and the order passed by the
learned trial Court, the roznama shows that after issuance of the
process notice was issued to the accused/respondent but as the
accused/respondent failed to appear and therefore, warrant was
issued. The complaint was fixed for return of the warrant report
prior to the dismissal of the complaint. On the day of the dismissal
of the complaint also the matter was fixed for return of the warrant.
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.
9. Thus, as far as the present case is concerned, it reveals
that the case was not fixed either for recording the evidence of the
complainant or for taking any steps but the complaint was fixed for
53.appa.546.2019.Judgment.odt
return of the warrant. There was no report received by the Court
whether warrant is executed or not. As rightly observed by this
Court in the case of Vijay Sanghavi (supra) relied upon by the
learned Advocate for the complainant wherein it is observed that 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.
10. In view of that, the appeal deserves to be allowed.
Accordingly, I proceed to pass following order:
ORDER
(i) The order dated 16.02.2019 passed by the
learned trial Court acquitting the accused is hereby
quashed and set aside.
(ii) The matter is remanded back to the learned
trial Court for retrial.
(iii) The parties to appear before the learned trial
Court on 24.09.2024.
(iv) Both the parties shall co-operate with the trial
Court to dispose of the case as earliest.
53.appa.546.2019.Judgment.odt
(v) The trial Court shall give sufficient opportunity
to both the parties to adduce their evidence.
(vi) The learned trial Court shall expedite the trial
considering the accused belongs to the Odisha State.
11. 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 12:03:21
