Bombay High Court
Purushottam Noorchandji Bisen vs Rajkumar Ishwar Deware on 6 October, 2025
2025:BHC-NAG:10228
Judgment apeal687.24
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 687/2024.
Purushottam Noorchandji Bisen,
Age 38 years, Occupation Business,
resident of Bhagat Layout, Prabhag No.17,
Behind the BSNL Office, Seloo,
Tahsil Seloo, District Wardha. ... APPELLANT.
VERSUS
Rajkumar Ishwar Deware,
Age 36 years, Occupation Business,
resident of Raj Photo Studio, Mahure
Complex, Near Bus Stop Seloo,
and Ward No.5, Kothewada, Seloo,
Tahsil Seloo, District Wardha. ... RESPONDENT.
---------------------------------
Mr. C.G. Deo, Advocate h/f. Mr.D.R. Bhoyar, Advocate
for the Appellant.
Shri D.U. Thakare, Advocate for the Respondent.
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CORAM : M.M. NERLIKAR, J.
DATE : OCTOBER 06, 2025.
ORAL JUDGMENT.
Heard. Rule. Rule is made returnable forthwith and by
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consent of the learned Counsel for the parties, the Appeal is taken up for
final disposal.
Admit.
2. By present Appeal filed by the appellant under Section
378[4] of the Code of Criminal Procedure, challenge is raised to the order
dated 30.01.2020 passed by the Judicial Magistrate, First Class [2 nd
Court], Seloo below Exh.1 in S.C.C. No.900/2016, by which the
complaint filed by the appellant under Section 138 of the Negotiable
Instruments Act came to be dismissed for want of prosecution, resulting
into acquittal of the respondent.
3. Brief facts of the case are that the appellant/complainant and
respondent/accused are friends and considering this friendship, on
08.10.2013, the complainant advanced an amount of Rs.2,50,000/- in
cash to the respondent. In February, 2015 the complainant requested the
accused for refund of the aforesaid amount, however, accused sought one
week's time for the said purpose. On 03.03.2015, the complainant
visited accused and demanded the said amount, on which dated the
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accused issued a post dated cheque of Rs.2,50,000/- dated 25.07.2016
drawn on State Bank of India. This cheque was presented by the
complainant with his Banker - State Bank of India, Seloo Branch but, the
same was returned back on 26.07.2016 with an endorsement "funds
insufficient". The complainant issued a legal notice to the accused on
04.08.2016, and on 20.09.2016, he filed a complaint before the Judicial
Magistrate First Class, Seloo which was registered as S.C.C.No.900/2016.
4. In this Summary Proceeding, process was issued, and
accordingly the accused appeared, and his plea was recorded. The matter
was also placed before the Lok Adalat on 07.11.2017, but, no settlement
could be arrived and therefore, the matter was posted for evidence on
21.12.2017. The complainant has submitted his evidence on affidavit on
09.08.2018 and his cross-examination was completed on 17.09.2018.
Accused on 16.10.2018 filed an application for re-examination of the
complainant, which was allowed on 04.07.2019. Examination of
complainant was completed on 11.07.2019 and on 24.09.2019 the
matter was posted for further evidence of complainant. It is since
24.09.2019, the witness of complainant was not available, and though an
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application for adjournment was filed, the same was rejected and matter
was kept for dismissal. Thereafter the matter was listed on 26.11.2019,
30.12.2019 and ultimately on 30.01.2020, the learned Judicial
Magistrate First Class, Seloo dismissed the complaint for want of
prosecution, thereby acquitting the accused of the charge of offence
punishable under Section 138 of the Negotiable Instruments Act. It is
this order, which is subject matter of challenge in this appeal.
Initially the complainant has filed Criminal Revision
Application No.6/2020 before the Sessions Court, Wardha, which was
dismissed on 06.06.2023, and thus, a considerable time was spent before
the wrong forum.
5. The learned counsel for the appellant submits that the order
dated 30.01.2020 ought not to have been passed by the learned
Magistrate, as the matter was regularly prosecuted by the appellant.
However, on few dates he was absent and though application was moved
for adjournment, the same was erroneously rejected and eventually the
matter was dismissed for want of prosecution. He further submits that he
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is ready and willing to prosecute the matter by taking necessary steps.
6. On the other hand, the learned Counsel for the respondent /
accused supported the impugned order and prayed for dismissal of the
appeal.
7. I have perused the impugned order and gone through the
record. The impugned order was passed on 30.01.2020 dismissing the
complaint filed by the complainant/appellant for want of prosecution.
Perusal of the roznama shows that after 11.07.2019, the matter was
posted for evidence thereafter, on two dates i.e. 24.09.2019 and
26.11.2019 the complainant was absent. On 30.01.2020 the impugned
order dismissing the complaint came to be passed by the Judicial
Magistrate First Class, Seloo. No doubt, the appellant was absent on
some dates, and the Court below was pleased to dismiss the complaint for
want of prosecution, as a result of which the accused was acquitted
under Section 256 of the Criminal Procedure Code. Needless to
mention to meet the ends of justice it is necessary to allow the present
appeal on the assurance as was submitted by the learned counsel that the
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appellant is ready and willing to prosecute the matter.
8. It would be useful to refer to the case of Shri Shaikh Akbar
Talab .vrs. Shri A.G. Pushpakaran & Another, - 2018 ALL MR (Cri)
1208, wherein, it was 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. The principles
of natural justice are 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 which violates procedural safeguards. For the reasons stated
above, I am inclined to allow the appeal. Hence, the following manner.
ORDER
(i) Criminal Appeal is allowed and disposed of.
(ii) The impugned order passed by the learned Judicial
Magistrate, First Class, Seloo, District Wardha below
Exh.1 in Summary Case No.900/2016 dated
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30.01.2020, dismissing the complaint of the appellant
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 hereby quashed and set
aside. The said proceedings are restored back to file
for its adjudication on merits.
(iii) The appellant / complainant shall appear before the
Trial Court on 13.10.2025 and abide by its further
directions.
(iv) 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.
(v) The above order is subject to payment of cost of
Rs.5,000/-. The cost shall be paid to the respondent
herein.
JUDGE
Rgd.
Signed by: R.G. Dhuriya (RGD)
Designation: PS To Honourable Judge
Date: 06/10/2025 14:39:14
