Bombay High Court
Ankush Kisanrao Aglawe vs Sanyam Sanjay Danekar on 9 October, 2025
2025:BHC-NAG:10496
Judgment Cr.APPA-1244-2024
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION [APPA] NO. 1244 OF 2024
IN
CRIMINAL APPEAL [STAMP] NO. 9407 OF 2024
...
Shri. Ankush S/o. Kisanrao Aglawe,
Aged about 50 years, Occ. Service,
R/o. Ashwini Palace, Dwarka Nagar,
Behind Saint Anney School, Anandwan Square,
Warora, Tah. Warora, Dist. Chandrapur.
... APPELLANT
--VERSUS--
Shri. Sanyam Sanjay Danekar
Aged 50 yrs., Occ.- Business,
R/o. WCL Colony, Shakti Nagar,
Q. No. M-222, Chandrapur,
Tah. & Dist. Chandrapur.
... RESPONDENT
-------------------------------------------------------------------------------------
Mr. R.Bhishikar, Advocate for the Appellant.
------------------------------------------------------------------------------------
PIYUSH MAHAJAN
Judgment Cr.APPA-1244-2024
2
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 21/09/2023 passed below
Exh.1 by the learned Additional Chief Judicial Magistrate,
Warora, Chandrapur, in S.C.C. No.636/2020. The appellant
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:
The present appeal arises from a complaint filed by
the Appellant (Complainant) against the Respondent (Accused)
under Section 138 of the Negotiable Instruments Act. The
PIYUSH MAHAJAN
Judgment Cr.APPA-1244-2024
dispute centers around an agreement wherein the Complainant
paid Rs. 4,00,000/- to the Accused for the installation of solar
energy panels at the Complainant's residence in Warora,
District Chandrapur. Despite the payment for the same, the
accused failed to carry out the work, prompting the
complainant to seek a refund. The accused issued a cheque
amounting to Rs. 1,00,000/- on 31/01/2020, which was
dishonored due to insufficient funds. Following the dishonor of
the cheque, the Complainant filed a complaint under Section
138 of the Negotiable Instruments Act, which was registered as
S.C.C. No. 636/2020 before the Learned Additional Chief
Judicial Magistrate, Warora. The accused pleaded not guilty.
5. On 17/05/2023, the Complainant testified and
completed his examination-in-chief. However, the cross-
examination could not be conducted due to absence of the
Accused. The case was subsequently adjourned. Despite the
Complainant's regular attendance, the Accused remained absent
PIYUSH MAHAJAN
Judgment Cr.APPA-1244-2024
on several occasions, prompting the Trial Court to issue a non-
bailable warrant on 06/07/2023. On 31/08/2023, the
Complainant closed his evidence by filing a Pursis at Exh.-35.
The Accused filed an application (Exh.-36) on same date
seeking permission to cross-examine the complainant and the
case was referred to Lok Adalat on 09/09/2023, but no
settlement was reached, and so the matter was listed for
hearing on 21/09/2023. But on 21/09/2023, the Complainant
and his counsel could not attend the hearing. The Complainant
was out of station, and the counsel, Adv. Amol Vaidya, who is a
diabetic and heart patient, was unwell, and therefore, unable to
attend on the said date. As a result, the Trial Court dismissed
the complaint for want of prosecution under Section 256 of the
Code of Criminal Procedure, observing that no one appeared
when the case was called. The Trial Court also noted that the
matter was pending for the Complainant's further evidence and
the filing of his say on the application at Exh.-36. On
21/09/2023, the Additional Chief Judicial Magistrate, Warora,
PIYUSH MAHAJAN
Judgment Cr.APPA-1244-2024
Chandrapur, passed the following order :-
" 1. Complaint is disposed of for want of
prosecution and steps not taken by complainant U/s.256 of
Code of Criminal Procedure.
2. Accused is acquitted from the offence
punishable under section 138 of Negotiable Instrument
Act.
3. Bail bonds of accused stand canceled. (if any).
4. Proceeding is closed."
6. The Appellant has approached this Court, contending
that the dismissal was unwarranted given the valid reasons for
non-appearance on 21/09/2023. It was submitted that despite
the appellant's regular appearance on various dates, the
impugned order has failed to take into consideration the said
fact. He further submits that the appellant had closed his
evidence by filing a Pursis on 31/08/2023. Additionally, the
matter was referred to Lok Adalat for an amicable settlement,
which, however, could not be reached. The counsel for the
appellant also submits that on 09/09/2023, the appellant's
PIYUSH MAHAJAN
Judgment Cr.APPA-1244-2024
counsel was present, and the matter was adjourned to
21/09/2023. However, on that date, an abrupt order under
Section 256 of the Code of Criminal Procedure was passed,
acquitting the accused of the offence punishable under Section
138 of the Negotiable Instruments Act, 1881. Furthermore,
despite service of notice, the respondent failed to appear, and
even after the matter was adjourned by two weeks, no one
appeared for the respondent on the last date of hearing.
7. I have perused the impugned order as well as the
record placed before me. It appears that on 17/05/2023,
several documents were taken on record in support of the claim
of the appellant. Thereafter, on 17/06/2023, the appellant was
present but his counsel remained absent. Again, on
21/06/2023, both the appellant and his counsel remained
absent. However, on 26/06/2023, the counsel for the appellant
was present, though the Presiding Officer was on leave, and
hence the matter was adjourned. It further appears that on
PIYUSH MAHAJAN
Judgment Cr.APPA-1244-2024
06/07/2023, the appellant and his counsel were present,
whereas the accused and his counsel were absent. Accordingly,
a bailable warrant was issued against the accused vide Exh.-33.
On 03/08/2023, both the appellant and his counsel, as well as
the accused, remained absent. The warrant issued earlier had
not been served and was returned with a request for extension
of time. Importantly, on 31/08/2023, the counsel for the
appellant was present and filed a Pursis stating that the
evidence of the complainant stood closed. On the same day, the
accused and his counsel were also present, and the matter was
accordingly referred to the Lok Adalat to explore the possibility
of settlement. On 09/09/2023, it appears that no settlement
could be arrived at in the Lok Adalat, and therefore, the
appellant himself was not present, however, his counsel
attended the proceedings. The accused and his counsel were
also present on that date. On 21/09/2023, both the appellant
and his counsel remained absent. It further appears from the
roznama that no steps were taken by the appellant on that day.
PIYUSH MAHAJAN
Judgment Cr.APPA-1244-2024
Consequently, the Learned Trial Court dismissed the complaint
for non-prosecution and acquitted the accused under Section
256 of the Code of Criminal Procedure.
8. Leave is granted to the appellant to prefer the appeal.
9. Admit. Office to register the appeal. The matter is
taken up for final hearing.
10. 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
PIYUSH MAHAJAN
Judgment Cr.APPA-1244-2024
to the accused to contest the complaint on merits. Therefore,
the matters were restored by quashing and setting aside
the impugned orders."
11. Upon perusal of the record it reveals that the learned
Chief Judicial Magistrate has erred in taking the view that the
say has not been filed by the complainant, on contrary the say
has been filed by the complainant on Exh.-36. 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. It is evident that the appellant had
closed his evidence by filing a Pursis on 31/08/2023.
Thereafter, the matter was referred to the Lok Adalat. As no
settlement was arrived at, the matter was listed on
09/09/2023, however, on that day, the counsel for the
appellant was present. It was only on 21/09/2023 that both
PIYUSH MAHAJAN
Judgment Cr.APPA-1244-2024
the appellant and his counsel were absent. In such
circumstances, the Learned Additional Chief Judicial
Magistrate, Warora, District Chandrapur, ought to have
adopted a liberal approach and granted a reasonable
opportunity to the appellant, especially considering that the
appellant and his counsel had diligently and sincerely attended
the proceedings on multiple prior occasions.
12. 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 a
miscarriage of justice and defeat the object of Section 138 of
the Negotiable Instruments Act.
13. 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
PIYUSH MAHAJAN
Judgment Cr.APPA-1244-2024
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. 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.
PIYUSH MAHAJAN
Judgment Cr.APPA-1244-2024
(ii) The impugned order passed by the
Learned Additional Chief Judicial Magistrate,
Warora, Chandrapur, in S.C.C. No.636/2020, dated
21/09/2023, 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) S.C.C. No. 636/2020, 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.
PIYUSH MAHAJAN
Judgment Cr.APPA-1244-2024
(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
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
