[Cites 3, Cited by 0]
Bombay High Court
Anil S/O Shivratan Gandhi vs Sau. Lata Gajanan Marathe on 2 December, 2025
2025:BHC-NAG:13386
Judgment Cr.APPEAL-30-2013
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 30 OF 2013
...
Anil S/o Shivratan Gandhi,
Aged about 41 years, Occupation: Business,
R/o. Nandura Road, Malkapur,
Tah. Malkapur, Dist. Buldana.
... APPELLANT
--VERSUS--
Sau. Lata Gajanan Marathe,
Aged: Major, Occ. Business,
R/o.146, Indira Nagar, Block No.1,
Kishorkumar Gangul Lane,
Behind Nasib Kirana,
Near Royal Hotel Juhutara,
Santakruz, (West) Mumbai.
... RESPONDENT
-------------------------------------------------------------------------------------
Mr. P.S. Kshirsagar, Advocate a/w Mr. M.P. Kshirsagar,
Advocate for the Appellant.
None for the Respondent.
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PIYUSH MAHAJAN
Judgment Cr.APPEAL-30-2013
2
CORAM : M.M. NERLIKAR, J.
DATE : DECEMBER 02, 2025.
ORAL JUDGMENT :
Heard the learned counsel for the appellant. Though
the respondent is served, none appeared on his behalf.
2. Admit.
3. The present appeal is filed for quashing and setting
aside the order dated 09/08/2010 passed by the learned 3 rd
Judicial Magistrate First Class, Malakpur, in Summary Criminal
Case No.155/2009, whereby the learned Magistrate dismissed
the complaint for want of prosecution, resulting in the acquittal
of the accused.
4. Brief facts of the case are that:
The appellant had filed a complaint under Section
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Judgment Cr.APPEAL-30-2013
138 of the Negotiable Instruments Act alleging dishonour of a
cheque amounting to Rs.72,000/- issued by the respondent and
drawn on the State Bank of India, Malkapur Branch. The
cheque was returned unpaid for the reason "funds insufficient."
After issuing the statutory notice and receiving no payment, the
appellant instituted Criminal Case No.155/2009 before the
Judicial Magistrate First Class, Malkapur, where process was
issued on 02/06/2009. As the respondent did not appear, a
warrant was issued on 13/08/2009, and the matter was
adjourned from time to time for return of the warrant. The
appellant and his counsel remained present on all earlier dates,
and on 09/02/2010 the case was posted to 18/06/2010. On
18/06/2010, the appellant found that the matter was not on
the board, and upon inquiry was informed that the record was
not traceable. Repeated inquiries over the following months
yielded the same response. During this period, the appellant
was undergoing treatment for a lumbar disc lesion and was
advised bed rest for three months from 06/10/2010.
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Judgment Cr.APPEAL-30-2013
After resuming normal activities in December 2010,
the appellant learned that the case had, in fact, been transferred
to the Court of the 3rd Judicial Magistrate First Class, Malkapur.
Examination of the record showed that the matter had been
listed before the transferee Court on 07/08/2010 and
09/08/2010, though no entry in the roznama indicated when or
by whose order the transfer had occurred, and no intimation
had been given to the appellant. Unaware of the transfer and
believing the case remained before the original Court, the
appellant did not appear before the transferee Court. On
09/08/2010, noting his absence, the learned 3 rd J.M.F.C.
dismissed the complaint under Section 256 of the Criminal
Procedure Code and discharged the respondent by passing the
following order:
" Present matter is kept for steps on part of
Complainant, Complainant and his advocate absent when
matter is called. Inspite of several direction and sufficient
time nobody is appearing and has taken steps proceeding
under such circumstances complaint deserves to be
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Judgment Cr.APPEAL-30-2013
dismissed, hence complaint is dismissed under Section 256 of
Criminal Procedure Code. Accused stands discharged."
5. The learned counsel for the appellant submits that
the order passed by the learned 3rd J.M.F.C., Malkapur is
vitiated as it was made without proper consideration of the
circumstances leading to the appellant's absence. It is
contended that the case had been transferred without any
notice or intimation to the appellant or his advocate, and
therefore the absence could not be treated as deliberate or
negligent. It is further submitted that the roznama contains no
entry indicating the date of transfer, the Court to which the
matter was transferred, or the authority directing such transfer.
According to the appellant, this omission created a genuine and
unavoidable lack of awareness regarding the subsequent listing
of the case before the transferee Court. The learned counsel
submits that the appellant and his advocate had consistently
remained present on all earlier dates up to 09/02/2010, which
demonstrates diligence and absence of any intention to delay
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Judgment Cr.APPEAL-30-2013
the proceedings. The long interval between dates, coupled with
the unrecorded transfer, is stated to have caused the confusion
leading to non-appearance. It is also urged that the matter was
pending at the stage of "return of warrant," and no report
regarding execution or non-execution of the warrant had been
received from the original Court. In such circumstances, the
question of taking further steps by the complainant did not
arise, and the trial Court ought to have considered the
procedural posture before invoking Section 256 of the Cr.P.C.
On these grounds, the learned counsel submits that the
impugned order has been passed in a mechanical manner,
without examining the factual and procedural aspects reflected
in the record, and that the appellant's absence was not
attributable to any lapse on his part.
6. The learned counsel for the appellant relied on the
judgment of this Court in the case of Shri Shaikh Akbar Talab
VS Shri A.G. Pushpakaran & Another, 2018 ALL MR (Cri) 1208,
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Judgment Cr.APPEAL-30-2013
and referred to the observations made in Paragraph No.14,
which are as follows:
"14. In above referred case cited (supra) the complaint
was dismissed under Section 256 of CrPC by the learned
Magistrate due to absence of the complainant. It is held that
principles of natural justice are required to be followed by
giving an opportunity to the complainant to prosecute the
complaint on merits as well as an opportunity is to be given
to the accused to contest the complaint on merits. Therefore,
the matters were restored by quashing and setting aside
the impugned orders."
7. Upon perusal of the record and in light of the law
laid down by this Court in the case of Shri Shaikh Akbar Talab
(supra), I am of the considered view that the Learned Trial
Court ought not to have dismissed the complaint for want of
prosecution, nor should have acquitted the accused for the
offence punishable under Section 138 of the Negotiable
Instruments Act, 1881.
8. The record indicates that the appellant had been
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Judgment Cr.APPEAL-30-2013
regularly attending the proceedings and had remained present
on every earlier date prior to 09/02/2010. The matter was
thereafter fixed for 18/06/2010, but during the long interval
between the two dates, the case appears to have been
transferred without any entry in the roznama or any
communication to the appellant or his advocate. When the
appellant appeared on 18/06/2010, the case was not on the
board, and repeated inquiries revealed only that the record
could not be traced. It was much later discovered that the case
had already been listed before the transferee Court on
subsequent dates, which the appellant was never made aware
of. The learned Magistrate, without examining these
circumstances or the incomplete procedural stage of "return of
warrant," proceeded to dismiss the complaint under Section
256 of the Cr.P.C. The sequence of events suggests that the
order was passed mechanically and without considering the
appellant's bona fide attempts to follow up the matter, thereby
denying him a fair opportunity to pursue the complaint on
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Judgment Cr.APPEAL-30-2013
merits.
9. A mere absence due to non-intimation of the transfer
of the case could not justify dismissal of the complaint and
discharge of the respondent. The appellant had diligently
attended all earlier dates and repeatedly inquired when the
matter was not found on the board. The subsequent discovery
that the case had been listed before the transferee Court
demonstrates that the appellant's absence was bona fide. By
overlooking these circumstances and dismissing the complaint
without considering the procedural irregularities and the
appellant's bona fide efforts, the trial Court effectively
prevented adjudication on merits, causing undue prejudice to
the appellant.
10. Considering the facts on record, including the
appellant's consistent presence on all earlier dates and bona
fide efforts to follow up the matter, it is evident that the
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Judgment Cr.APPEAL-30-2013
dismissal of the complaint by the trial Court was premature and
hyper-technical. The case had been transferred without
intimation, and the appellant had no knowledge of the
subsequent dates before the transferee Court. The approach
adopted by the learned trial Court overlooked the procedural
irregularities and the stage of "return of warrant," and is
inconsistent with the principles of natural justice. As held by
this Court in Shri Shaikh Akbar Talab (supra), the complainant
is entitled to a fair opportunity to prosecute the complaint on
merits, and similarly, the respondent must have the opportunity
to contest it. The trial Court ought to have considered these
aspects before dismissing the complaint, and the absence of
such consideration demonstrates a rigid and technical
application of law contrary to the statutory scheme and the
principles of justice. For the reasons stated above, I deem it
appropriate to allow the appeal. Hence, the following order:-
ORDER
(i) The Appeal is allowed.
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Judgment Cr.APPEAL-30-2013
(ii) The impugned order passed by the
learned 3rd Judicial Magistrate First Class,
Malakpur, in Summary Criminal Case
No.155/2009, dated 09/08/2010 dismissing the
said complaint in default under Section 256 of the
Code of Criminal Procedure and consequently
acquitting the accused for the offence punishable
under Section 138 of the Negotiable Instruments
Act, is quashed and set aside.
(iii) Summary Criminal Case No.155/2009,
stands restored to file at its original stage and the
matter is remanded back to the learned Trial Court
to decide the same afresh, on its own merits.
(iv) The parties are directed to remain
present before the Learned Trial Court on
07/01/2026.
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Judgment Cr.APPEAL-30-2013
(v) The appellant shall proceed with the
matter without seeking any adjournment and shall
co-operate with the Trial Court. The Trial Court
may grant adjournment in exceptional
circumstances.
(vi) The above order is subject to payment of
costs of Rs.2,500/-. The cost shall be deposited by
the appellant in the Trial Court. The said cost shall
be paid to the respondent.
(vii) The appeal is disposed of, accordingly.
[ M. M. NERLIKAR, J ]
PIYUSH MAHAJAN
