[Cites 3, Cited by 0]
Bombay High Court
Shital Prakash Ukey vs Jagruti Agro Food And Infra Projects, ... on 3 December, 2025
1 26-A appa 783.25
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APPA) 783/2025 IN
CRIMINAL APPEAL NO. 470/2025
(Shital Prakash Ukey Vs. Jagruti Agro Foods & Infra Projects,LLP)
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. Aashish Rajesh Fule, Advocate for applicant/appellant.
None for respondent.
CORAM: M. M. NERLIKAR, J.
DATED : 03/12/2025.
Heard the learned counsel for the applicant,
though, duly served, none appears for the respondent.
The application is filed seeking leave to file appeal. Leave
granted. Application is disposed of.
2. The appeal is filed against the order below Exh.1
passed by the learned Judicial Magistrate First Class, Court
No.3, Bhandara in SCC No.730/2016 dated 05.12.2023,
wherein the complaint filed by the appellant under Section
138 of the Negotiable Instruments Act ('NI Act') was
dismissed for want of prosecution and the accused is
acquitted.
3. The learned counsel for the appellant submits that
the Trial Court ought to have given him an opportunity to
2 26-A appa 783.25
prosecute his complaint as he was regularly attending the
Court on each and every date. However, the matter kept
adjourning for some or other reasons. It is true that the
complaint was filed in the year 2016, however much time
went to serve the accused/respondent. The Court was
constrained to issue bailable as well as non-bailable
warrant time and again to secure the presence of
respondent. The Roznama shows that the applicant was
present on each and every date except on few dates. Even
in the year 2020 and 2021, during Covid period, he has
attended the Court. He submits that he wants to pursue
his complaint, if one opportunity is granted to him and
even if this Court directs the Trial Court to decide the
complaint expeditiously. He invited attention of this Court
to the Roznama which shows that since 08.09.2021, the
appellant and his counsel were continuously attending the
proceedings, however the respondent was never present.
Even during this period only on three to four occasions, he
was not able to remain present. However, he lastly
submits that one opportunity may be granted as the cheque
is of huge amount.
3 26-A appa 783.25
4. As observed above, though the respondent is duly
served, none appears on behalf of him. I have perused the
impugned orders and the Roznama. Admittedly, the case
is of 2016. The case is kept for adducing the evidence of
complainant. It further appears that after granting several
opportunities to adduce the evidence on behalf the
complainant, the Court was constrained to keep the matter
on 22.11.2023, wherein the next date was given as
05.12.2023 and on 22.11.2023, specific order was passed,
"keep the matter for dismissal". However, on 22.11.2023
and also on 05.12.2023 neither the appellant remained
present nor his counsel was present. Therefore, the Court
was constrained to dismiss the complaint under Section
256 of the Code of Criminal Procedure and the accused
was acquitted by its order dated 05.12.2023.
5. No doubt, the appellant remained absent on
23.10.2023, 22.11.2023 and 05.12.2023, however he
remained present on 16.08.2023. It appears from the
record that though the case was instituted in the year
2016, the appellant was not able to serve the respondent
for a long time and after service, it further appears that the
respondent/accused has not appeared before the Court,
4 26-A appa 783.25
therefore, the Court was constrained to pass bailable as
well as non-bailable warrant against the respondent. It
appears that on several occasions, the accused/respondent
and his counsel were not present, however it appears from
Roznama that in maximum number of time when the date
was given, the counsel as well as complainant was present,
therefore it could be gathered that the appellant is
bonafidely pursuing the complaint. The fact remains that
the appellant could not adduce his evidence either by filing
the affidavit of examination-in-chief or by oral evidence. It
is assured by the learned counsel for appellant that if the
impugned order is quashed and set aside, the appellant
would readily file the affidavit of examination-in-chief or
lead the oral evidence.
6. The learned counsel for the appellant relied
upon this Court's judgment in Shri Shaikh Akbar Talab VS
Shri A.G. Pushpakaran & Another, 2018 ALL MR (Cri)
1208, particularly the observations in Paragraph 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
5 26-A appa 783.25
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 the light of the
legal principles laid down in Shaikh Akbar Talab (supra),
this Court holds that the learned Trial Court ought not to
have dismissed the complaint for want of prosecution and
acquitted the accused for the offence under Section 138 of
the Negotiable Instruments Act.
8. Considering the attending circumstances appearing
on record, it would be just and proper to afford a reasonable
opportunity to the appellant to pursue his cause on merits.
The observations of this Court in the case of Shri Shaikh
Akbar Talab (supra), are relevant wherein it is held that the
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.
6 26-A appa 783.25
The principles of natural justice is the cardinal principle of
law and backbone of judicial process. Opportunity of
hearing and right to present the case are statutory
incorporation of natural justice by mandating procedural
safeguards, and therefore, the Court below ought not to
have taken a harsh and hyper-technical view by dismissing
the complaint for want of prosecution and accordingly
violates procedural safeguards. For the reasons stated
above, I deem it appropriate to allow the appeal. Hence, the
following order:-
(I) The order below Exh.1 passed by the learned
Judicial Magistrate First Class, Court No.3,
Bhandara in SCC No.730/2016 dated 05.12.2023 is
hereby quashed and set aside.
(II) The complaint is restored to its original
position. The complainant/appellant is directed to
adduce the evidence on 19.01.2026.
(III) The Trial Court shall proceed further as per
law.
(IV) The appellant shall proceed with the
matter without seeking any adjournment and shall
co-operate with the Trial Court. The Trial Court
7 26-A appa 783.25
may grant adjournment in exceptional
circumstances.
(V) The above order is subject to cost of
Rs.50,000/- and the same shall be deposited in this
Court within a period of four weeks from the date
of uploading of this order. After depositing the
same, the Registry shall give Rs. 25,000/- to the
Library of Bar Association, High Court, Nagpur and
Rs.25,000/- be given to the Vidarbha Lady Lawyers
Association, Nagpur.
9. The appeal is disposed of in above terms.
( M. M. NERLIKAR, J.)
Gohane
Signed by: Mr. J. B. Gohane
Designation: PS To Honourable Judge
Date: 04/12/2025 19:31:12
