Bombay High Court
Sarda Power And Steel Ltd. Nagpur, ... vs Shree Swami Samarth Steel Centre, ... on 25 November, 2025
2025:BHC-NAG:12873
Judgment Cr.APPEAL-422-2014
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 422 OF 2014
...
1] Sarda Power and Steel Ltd.,
Formerly known as Hytech Ispat Ltd. At 40,
Great Nag Road, Nagpur,
Through Its Director,
Shri Ajay s/o Shyamsunder Soni.
2] Ajay s/o Shyamsunder Soni,
Aged About : 53 years, Occ: Director,
Add.: 40, Great Nag Road, Nagpur.
... APPELLANTS
--VERSUS--
1] Shree Swami Samarth Steel Centre,
Plot No.702, Rajaram Chowk,
Timber Market, Kolhapur,
Through its partner,
Sunil Vyankatesh Kulkarni.
2] Sunil Vyankatesh Kulkarni,
Aged About: Major: Occ: Business,
(Partner Shree Swami Samarth Steel Centre),
Plot No.3032, A Ward, Tarabai Road, Kolhapur.
... RESPONDENTS
PIYUSH MAHAJAN
Judgment Cr.APPEAL-422-2014
2
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Mr. Mayank Singade, Advocate for the Appellants.
None for the Respondents.
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CORAM : M.M. NERLIKAR, J.
DATE : NOVEMBER 25, 2025.
ORAL JUDGMENT :
Heard the learned counsel for the appellants. Though
the respondents are served, none appeared for the respondents.
2. Admit.
3. The present appeal is filed for quashing and setting
aside the order dated 10/12/2012 passed below Exh.-1 by the
learned 8th Joint Judicial Magistrate First Class, (Special 138
Court), Nagpur, in Summary Criminal Case No. 4726/2005,
whereby the learned Magistrate dismissed the complaint for
want of prosecution, resulting in the acquittal of the accused.
PIYUSH MAHAJAN
Judgment Cr.APPEAL-422-2014
4. Brief facts of the case are that:
The appellant No.1 is a company incorporated under
the Companies Act, 1956, engaged in the manufacture and
supply of steel materials, represented through its Director Shri
Ajay S. Soni. Respondent No.1 is a partnership firm in the retail
steel business, represented by its partners, one of whom, Shri
Amrut Ghadge, expired during the proceedings. The
respondents had purchased TMT bars from the appellant and,
towards discharge of liability, issued cheque No. 007456 dated
11/11/2004 for Rs.3,36,932/- drawn on Shree Mahalaxmi Co-
operative Bank Ltd., Kolhapur. The cheque was dishonoured
with the remark "Not Arranged For" on 29/11/2004. The
appellant served a statutory notice dated 18/12/2004 under
Section 138 of the Negotiable Instruments Act, which was duly
received by the respondents, but they did not make payment.
Consequently, the appellant filed a complaint under Section
200 of the Code of Criminal Procedure, 1973, for an offence
under Section 138 of the Negotiable Instruments Act, 1881,
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Judgment Cr.APPEAL-422-2014
registered as Summary Criminal Case No. 4726/2005 before
the Judicial Magistrate First Class, Nagpur. On 10/12/2025, the
Trial Court dismissed the complaint for want of prosecution and
acquitted the accused by passing the following order:
" The matter is lingering without any progress since
last many dates. The record shows that the complainant is
absent since long. No steps have been taken for securing the
presence of the accused inspite of specific order passed by
this Court at Ex. 1. Today, the complainant is called
repeatedly up to this 4.30 PM. He is absent. His advocate is
also absent. It shows clearly that the complainant has lost his
interest to proceed further with the matter. Hence the matter
is dismissed under Section 256 of Cri.P.C. The accused is
acquitted."
5. The learned counsel for the appellant submits that
the Trial Court ought not to have dismissed the complaint
under Section 256 Cr.P.C. nor acquitted the accused,
particularly when the respondents, though duly served with
summons, never appeared before the Court at any stage. He
submits that the Court was compelled to issue Non-Bailable
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Judgment Cr.APPEAL-422-2014
Warrants on several occasions and that the appellant made
genuine efforts to execute the warrants, including taking
Hamdast, but was unable to serve the same. It is pointed out
that on 30/08/2012 the appellant engaged a new counsel and,
on the same day, moved an application seeking permission to
serve the Non-Bailable Warrant through the Commissioner of
Police, Kolhapur. Pursuant thereto, on 15/09/2012, the
appellant received hamdast of the Non-Bailable Warrant for
service upon the accused, and the matter was thereafter posted
on 16/10/2012 for the return/report of the warrant. On
16/10/2012, both the complainant and his counsel remained
present and the matter came to be adjourned to 01/12/2012
for the Commissioner's report. It is submitted that the counsel
inadvertently failed to note the date 01/12/2012 in his diary,
resulting in the non-appearance of the complainant and counsel
on that day. The matter was then automatically posted for
passing orders on 10/12/2012, but as the complainant and
counsel had temporarily lost track of the case due to the earlier
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Judgment Cr.APPEAL-422-2014
bona fide lapse, they could not appear on 10/12/2012, leading
to the impugned order of dismissal. The appellant submits that
the record clearly shows regular presence before the Court on
all earlier dates, continuous efforts to secure the accused by
way of repeated Non-Bailable Warrants, and diligent
prosecution of the complaint from the year 2005 up to 2012. It
is therefore urged that the solitary absence on 01/12/2012 and
the consequential absence on 10/12/2012 were purely
accidental and ought not to have resulted in dismissal of the
complaint.
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,
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
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Judgment Cr.APPEAL-422-2014
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 shows that the appellant had been
diligently prosecuting the complaint and had regularly attended
the proceedings. After engaging a new advocate on
30/08/2012, further steps were taken to execute the Non-
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Judgment Cr.APPEAL-422-2014
Bailable Warrant, including receiving hamdast on 15/09/2012
and appearing before the Court on 16/10/2012, when the
matter was adjourned to 01/12/2012 for the Commissioner's
report. The appellant's absence on 01/12/2012 occurred due to
a bona fide mistake in noting the date, and the consequent
absence on 10/12/2012 was a natural result of losing track of
the matter. Despite this being the only lapse after years of
consistent diligence, the Trial Court proceeded to dismiss the
complaint under Section 256 Cr.P.C. without affording an
opportunity to explain the inadvertent absence. In view of the
appellant's continuous efforts to prosecute the complaint and to
secure the presence of the accused, the dismissal appears
mechanical and not in consonance with the ends of justice.
9. A single inadvertent absence on 01/12/2012, due to
a bona fide oversight, could not justify dismissal of the
complaint and acquittal of the accused under Section 256
Cr.P.C. The Trial Court passed the order on 10/12/2012
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Judgment Cr.APPEAL-422-2014
without allowing the appellant to explain or continue
prosecuting the case, despite repeated efforts to serve Non-
Bailable Warrants and regular appearances on prior dates,
thereby causing potential injustice under Section 138 of the
Negotiable Instruments Act.
10. Considering the circumstances reflected in the record,
including the appellant's sustained efforts to prosecute the
complaint over several years, regular appearances before the
Trial Court, and the fact that the absence on 01/12/2012
occurred due to a bona fide oversight in noting the date in the
case diary, it would have been appropriate for the Trial Court to
grant a reasonable opportunity to enable the appellant to
continue the prosecution and execute the Non-Bailable
Warrants. Affording a fair chance to both parties to advance
and contest the matter is a fundamental aspect of procedural
fairness. The Trial Court, however, dismissed the complaint and
acquitted the accused on the basis of this single, unintentional
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Judgment Cr.APPEAL-422-2014
absence, without allowing the matter to remain pending or
considering the substantial progress already made in the
proceedings. Such a rigid approach, in a case where the
appellant had consistently appeared and taken all possible steps
to secure the accused's presence, undermines the proper
adjudication of the complaint on merits. For these reasons, I
deem it just and appropriate to allow the appeal. Hence, the
following order:
ORDER
(i) The Appeal is allowed.
(ii) The impugned order passed by the
learned 8th Joint, Judicial Magistrate First Class,
(Special 138 Court), Nagpur, in Summary Criminal
Case No. 4726/2005, dated 10/12/2012 dismissing
the said complaint in default under Section 256 of
the Code of Criminal Procedure and consequently
acquitting the accused for the offence punishable
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Judgment Cr.APPEAL-422-2014
under Section 138 of the Negotiable Instruments
Act, is quashed and set aside.
(iii) Summary Criminal Case No.4726/2005,
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
18/12/2025.
(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
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Judgment Cr.APPEAL-422-2014
costs of Rs.10,000/-. 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
