Bombay High Court
Bapu Bhimrao Toradmal vs Ganesh Jalindar Shinde on 16 January, 2025
2025:BHC-AUG:1696
Appeal 51-2025
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 51 OF 2025
BAPU BHIMRAO TORADMAL
VERSUS
GANESH JALINDAR SHINDE
...
Mr. Vivek V. Tarde - Advocate for Appellant
....
CORAM : SANJAY A. DESHMUKH, J.
DATE : 16th JANUARY, 2025
JUDGMENT :
1. Heard learned advocate for appellant.
2. This appeal is preferred by the original complainant against the
order passed by the learned Judicial Magistrate First Class, Karjat,
Dist. Ahmednagar (hereinafter referred to as "the learned Trial
Court") dated 13.02.2019 in S.C.C. No.289 of 2015 by which the
respondent/accused was acquitted under Section 256 of the
Criminal Procedure Code, 1973, now Section 279 of the Bhartiya
Nagarik Suraksha Sanhita, 2023 (for short "BNSS").
3. Brief facts of the case are as under :
The appellant filed the complaint under Section 138 of the
Negotiable Instruments Act, 1881 (for short "N.I. Act") on
Appeal 51-2025
28.07.2015. The summon as well as bailable warrant were issued
against accused/respondent, which were served to him. But he did
not remain present before the learned Trial Court. The report of
service of bailable warrant was filed on record on 21.12.2018. The
learned Trial Court has observed that no steps were taken and the
complainant was absent. The complainant has not taken any
appropriate steps and no application was filed on record. The matter
was four years old. There was no need to keep the file pending on
record and the complaint was dismissed for want of prosecution
under Section 256 of the Criminal Procedure Code, 1973 and
respondent/accused was acquitted under Section 138 of N.I. Act.
4. Learned advocate for appellant pointed out the grounds of
objections of the appeal and submitted that the impugned order is
not legal. By the said order the valuable rights of the appellant are
affected and respondent/accused is illegally acquitted. In support of
his submissions, he is relying upon the precedental law of Shabu
Bhimappa Dudhale Vs. Vinayak Appasaheb Padavle and Anr., 2023
ALL MR (Cri) 2726, in which it is held that, the powers under Section
256 of the Criminal Procedure Code, 1973 shall not be exercised only
for the purpose of disposing of cases. He therefore submits to allow
the appeal by setting aside the impugned order and by remanding
Appeal 51-2025
the matter back for fresh hearing.
5. Following point emerged for consideration :-
(i) Is the impugned order is illegal and incorrect, and
require interference ?
6. Perused the documents as well as grounds of objection of this
appeal. The learned Trial Court had not observed in the impugned
order as to whether the advocate for the complainant is present or
not after receiving the report of bailable warrant dated 21.12.2018.
The impugned order was passed within two and half months
thereafter and sufficient opportunity was not given to the appellant
to take steps. No doubt the matter had completed four years
however, it is not ground for passing such order and forfeit the
valuable rights of the appellant to proceed against the
accused/respondent.
7. Considering the facts of the case, the grounds of objections, the
argument submitted on behalf of appellant as well as law laid down
in the case of Shabu Bhimappa Dudhale ( supra), it would be proper
to set aside the impugned order and allow the appeal with direction
to hear and decide the complaint as expeditiously as possible in the
interest of justice. It is because the complaint/case is pending for
Appeal 51-2025
more than nine years and this is an exceptional circumstance to
direct it expeditiously by keeping it once in a week as per directions
of the Hon'ble Supreme Court held in the case of High Court Bar
Association Allahabad Vs. State of Uttar Pradesh, (2024) 6 SCC 267.
Therefore, point No. (i) is answered in affirmative. Hence, the
following order :
ORDER
(a) The impugned order is set aside.
(b) The complaint is restored to its original stage.
(c) The learned Judicial Magistrate First Class, Karjat, Dist.
Ahmednagar is directed to decide the complaint as
expeditiously as possible as per law and in any event
within one year from today by keeping it once in a week.
(d) The appellant to submit copy of this judgment before the
concerned Court within two weeks from today.
[ SANJAY A. DESHMUKH ]
JUDGE
