Bombay High Court
M/S Shree Shyam Motors Through Its ... vs Shri Kishor S/O Sahebrao Ghormade on 9 October, 2025
2025:BHC-NAG:10496
Judgment Cr.APPA-565-2024
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION [APPA] NO. 565 OF 2024
IN
CRIMINAL APPEAL [STAMP] NO. 4839 OF 2024
...
M/s Shree Shyam Motors,
Through its proprietor,
Shri Pravin S/o Nandlaji Lohiya,
Aged about 45 Years, Occ.: Business,
R/o Near Madhuban Hotel, Nalwadi,
Nagpur Road, Wardha, Tah. & Dist. Wardha.
... APPELLANT
--VERSUS--
1] Shri Kishor S/o Sahebrao Ghormade,
Aged adult, Occ.: Business,
R/o Chandewahi, Tah. Karanja (Gh.),
Dist. Wardha.
2] State of Maharashtra,
Through the office of learned Public Prosecutor,
Hon'ble High Court at Nagpur,
Nagpur, Tah. & Dist. Nagpur.
... RESPONDENTS
PIYUSH MAHAJAN
Judgment Cr.APPA-565-2024
2
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Mr. A.H. Lohiya, Advocate for the Appellant.
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CORAM : M.M. NERLIKAR, J.
DATE : OCTOBER 09, 2025.
ORAL JUDGMENT :
Heard the learned counsel for the appellant.
2. Admit.
3. The present application is being filed seeking leave to
file appeal against the order dated 01/04/2024 passed below
Exh.1 by the learned Additional Chief Judicial Magistrate,
(Court No.3), Wardha, in Summary Criminal Case
No.4784/2019. The appellant further prays for quashing and
setting aside of the said order, wherein, the learned Magistrate
was pleased to dismiss the complaint for want of prosecution,
resulting into acquittal of the accused.
4. Brief facts of the case are that:
PIYUSH MAHAJAN
Judgment Cr.APPA-565-2024
The appellant, a resident of Wardha district, is
engaged in the business of selling Eicher Tractors and related
agricultural equipments under the name M/s Shree Shyam
Motors. The respondent, also a resident of Wardha district,
entered into a business transaction with the appellant in
January 2018. The respondent purchased an Eicher Tractor for
Rs. 6,40,000/-, paying Rs. 3,50,000/- upfront and financing Rs.
2,45,700/- through Hinduja Finance. The balance of Rs.
40,300/- was agreed to be paid by August 2019, but the
respondent failed to pay the same. On 19/08/2019, the
respondent issued a cheque for Rs. 40,000/- to settle the
balance, which was dishonoured due to insufficient funds on
22/08/2019. Despite reminders, the respondent did not make
the payment. On 03/09/2019, the appellant sent a legal notice
demanding payment within 15 days, but the respondent failed
to comply. As a result, the appellant filed a complaint on
01/10/2019 under Section 138 of the Negotiable Instruments
Act, 1881, for dishonour of the cheque. The Trial Court issued
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Judgment Cr.APPA-565-2024
process against the respondent. However, on 05/03/2024, the
case was transferred to another court, and due to an
inadvertent error, the appellant's counsel failed to attend the
hearing on 01/04/2024. Consequently, the Trial Court
dismissed the complaint for want of prosecution. On
01/04/2024, the Additional Chief Judicial Magistrate, (Court
No.3), Wardha, passed the following order :-
" 1. Case is dismissed for want of prosecution."
5. The dismissal of the complaint by the Trial Court is
challenged on the ground that failure to attend the hearing was
due to a bonafide mistake, and the appellant and his counsel
apologize unconditionally for the said oversight. The appellant
contends that the dismissal does not reflect any intentional
neglect or delay in prosecuting the matter and that the matter
should be allowed to be proceeded on merits. The learned
counsel for the appellant also invited my attention to the
roznama dated 05/03/2024, which specifically indicates that
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Judgment Cr.APPA-565-2024
the roznama was not maintained for several dates due to
transfer of the matter from the Court of the 3 rd Joint Civil
Judge, Junior Division, Wardha, to the Court of the 3 rd Joint
Senior Division and Additional Chief Judicial Magistrate,
Wardha, pursuant to the order dated 01/01/2024 passed by the
District and Sessions Judge, Wardha. It further appears from
the roznama that, although the counsel for the appellant was
present on that day, the appellant was absent. On that occasion,
the counsel for the appellant orally requested for an
adjournment for verification of the complaint, and the matter
was accordingly adjourned to 01/04/2024. On 01/04/2024,
the counsel for the appellant was present, but the appellant was
absent, even the accused remained absent. Consequently, the
learned Trial Court passed an order dismissing the complaint
for want of prosecution. Upon review of the record, it is evident
that Summary Criminal Case No. 4784/2019 has been pending
for a considerable period. It is concerning to see that the
roznama dated 05/03/2024 reflects that the roznama was not
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Judgment Cr.APPA-565-2024
maintained in a timely manner. In such circumstances where
the roznama itself was not accurately or promptly recorded, it
was incumbent upon the Court to ascertain whether the
appellant and his counsel had been present at previous
hearings. Without verifying these crucial facts, the Court ought
not to have dismissed the complaint for want of prosecution.
Furthermore, given the transfer of the case from one Court to
another, it was essential for the Court to seek an explanation
from the concerned clerk regarding the failure to maintain the
roznama. This failure raises questions about the accuracy and
integrity of the procedural record, which directly impacted the
decision to dismiss the complaint.
6. Leave is granted to the appellant to prefer the appeal.
7. Admit. Office to register the appeal. The matter is
taken up for final hearing.
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Judgment Cr.APPA-565-2024
8. 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
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."
9. 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
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Judgment Cr.APPA-565-2024
offence punishable under Section 138 of the Negotiable
Instruments Act, 1881.
10. It is evident from the record that the appellant had
consistently attended the proceedings, and the case was
regularly listed and adjourned. However, the roznama which is
crucial for maintaining an accurate record of attendance, was
not properly maintained by the Court, as highlighted in the
roznama dated 05/03/2024. Despite this, the appellant and his
counsel had diligently appeared at earlier hearings, and there
was no intentional neglect on their part. On 01/04/2024, the
counsel for the appellant was present, but the appellant was
absent, even the accused remained absent. In such
circumstances, the learned Additional Chief Judicial Magistrate,
Court No. 3, Wardha, should have adopted a more liberal
approach, especially in light of the procedural discrepancies
and the absence of a complete roznama. The Trial Court should
have made reasonable efforts to verify the appellant's prior
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attendance and the status of the proceedings before passing any
orders. Given the appellant's consistent participation in earlier
hearings, a reasonable opportunity to be heard should have
been granted.
11. The absence on a solitary occasion, or even on few
occasions, by itself, would not constitute sufficient ground to
dismiss the complaint for non-prosecution and consequently
acquit the accused. Such a view, if sustained, would result in
miscarriage of justice and defeat the object of Section 138 of
the Negotiable Instruments Act.
12. 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
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Judgment Cr.APPA-565-2024
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 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:-
ORDER
(i) The Appeal is allowed.
(ii) The impugned order passed by the
learned Additional Chief Judicial Magistrate, (Court
No.3), Wardha, in Summary Criminal Case
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Judgment Cr.APPA-565-2024
No.4784/2019, dated 01/04/2024, 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.4784/2019,
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
24/11/2025.
(v) The appellant shall proceed with the
matter without seeking any adjournment and shall
co-operate with the Trial Court. The Trial Court
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may grant adjournment in exceptional
circumstances.
(vi) The above order is subject to payment of
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
