Bombay High Court
M/S Shreeji Infotech Thr. Its ... vs M/S Rohit Communication Thr. Its ... on 16 October, 2025
2025:BHC-NAG:11045
Judgment Cr.APPA-927-928-929-2024
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION [APPA] NO. 927 OF 2024
IN
CRIMINAL APPEAL [STAMP] NO. 8639 OF 2022
WITH
CRIMINAL APPLICATION [APPA] NO. 928 OF 2024
IN
CRIMINAL APPEAL [STAMP] NO. 8636 OF 2022
WITH
CRIMINAL APPLICATION [APPA] NO. 929 OF 2024
IN
CRIMINAL APPEAL [STAMP] NO. 8633 OF 2022
...
M/s Shreeji Infotech,
Through its Proprietor,
Mrs. Preeti Chandak,
Age-45 years, Occ-Business,
R/o Yamuna Sankul, Infront of Main Hospital,
Akola, Tal.& Dist. Akola.
... APPELLANT
--VERSUS--
M/S. Rohit Communication,
Through its Proprietor,
Rohit S/o Vrajlal Gaglani,
Age-46 years, Occ-Business,
PIYUSH MAHAJAN
Judgment Cr.APPA-927-928-929-2024
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R/o Ashish Bunglow, S.A. College road,
Beside Hotel Venus, Akola,
Tal.& Dist. Akola
... RESPONDENT
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Mr. N.R. Tekade, Advocate for the Appellant.
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CORAM : M.M. NERLIKAR, J.
DATE : OCTOBER 16, 2025.
COMMON JUDGMENT :
Heard the learned counsel for the appellant. None for
the Respondent.
2. Upon hearing the learned counsel for the appellant,
leave is granted to prefer the appeal. Office is directed to
register the appeal.
CRIMINAL APPEAL NO.______2025:
3. Admit. The appeal is taken up for final hearing.
4. The present applications are being filed seeking leave
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Judgment Cr.APPA-927-928-929-2024
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to file appeal against the orders dated 24/09/2021 passed
below Exh.1 by the learned Judicial Magistrate First Class,
(Court No.2), Akola, in Summary Criminal Case
Nos.5693/2019, 5694/2019 and 5695/2019. The appellant
further prays for quashing and setting aside of the said orders,
wherein, the learned Magistrate was pleased to dismiss the
complaint for want of prosecution, resulting into acquittal of
the accused.
5. Brief facts of the case are that:
The appellant is engaged in the wholesale and retail
business of mobile phones and accessories. The respondent,
who was in regular need of mobile phones and related
accessories, approached the appellant and obtained various
goods on credit. Despite repeated requests by the appellant for
payment, the respondent failed to discharge his liability. Upon
persistent follow-ups, the respondent issued five post-dated
cheques in favour of the appellant, drawn on his firm's account,
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Judgment Cr.APPA-927-928-929-2024
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dated 13/09/2019. Subsequently, the appellant presented one
of the cheques, amounting to Rs.15,383/-, for encashment.
However, the cheque was dishonoured with the bank's
endorsement "Account Closed." Thereafter, the appellant issued
a statutory demand notice dated 12/10/2019 in (Cr.APPA
No.927/2024), dated 14/10/2019 in (Cr.APPA No.928/2024),
and dated 15/10/2019 in (Cr.APPA No.929/2024), to the
respondent, calling upon him to pay the cheque amount.
Despite due service of the notice, the respondent failed to
comply with the demand. Consequently, the appellant filed a
complaint under Section 138 of the Negotiable Instruments Act,
1881, before the Judicial Magistrate First Class, Akola, on
19/11/2019. Upon satisfaction, the learned Magistrate issued
process on 07/02/2020. Despite service of summons, the
respondent failed to appear, leading to an application for
issuance of a warrant. However, during the pendency of the
said application, due to the disruptions caused by the COVID-19
pandemic, the matter was adjourned multiple times. On
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Judgment Cr.APPA-927-928-929-2024
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07/09/2021, the appellant and his counsel were unable to
appear, and the matter was thereafter posted for dismissal.
Eventually, on 24/09/2021, the learned Trial Court dismissed
the complaint for want of prosecution and acquitted the
respondent under Section 256 of the Criminal Procedure Code.
Being aggrieved by the said order, the appellant has preferred
the present appeal challenging the dismissal of the complaint
and the acquittal of the respondent. On 24/09/2021, the
learned Judicial Magistrate First Class, (Court No.2), Akola,
passed the following order :-
" The case is dismissed under section 256 of the
Code of Criminal Procedure."
6. The dismissal of the complaint by the learned Trial
Court is primarily based on the ground that the complainant
has failed to remain present and take effective steps in the
matter, which, according to the Trial Court, resulted in
prolonged pendency without progress. The order dated
24/09/2021 indicates that the matter was taken up as part of a
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special drive initiated pursuant to the communication issued by
this Court vide No. B(Gen)-1001/2021/1114 dated
31/08/2021, which directed early disposal of long-pending
matters. It was recorded that the complainant was absent since
long, that no steps were being taken against the accused, and
that in absence of progress, further pendency would be
unjustified. In that context, the complaint came to be dismissed
under Section 256 of the Code of Criminal Procedure.
7. Upon perusal of the roznama entries placed on
record, it is noted that on 22/02/2021, the complainant's
advocate was present and had moved an application for
issuance of bailable warrant against the accused. The matter,
however, could not proceed for want of bail bond. On
30/04/2021, the matter stood adjourned in view of directions
issued by this Court and the District and Sessions Court, Akola.
On the subsequent dates, i.e., 07/09/2021 and 24/09/2021,
the roznama reflects absence of both parties. While it is true
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that consistent and active prosecution is required on the part of
the complainant, it also appears from the record that the
complaint had earlier been actively pursued and had not
remained entirely dormant. The observations made by the Trial
Court in the dismissal order, though general in nature, do not
appear to have taken into account the specific instances of
attendance and steps taken prior to the dates in question. In
such circumstances, where the matter was otherwise pending
for final adjudication, and the reasons for adjournments were
not solely attributable to the complainant, the Trial Court was
expected to exercise its discretion judiciously. A balanced
approach, keeping in mind both the need for expeditious
disposal and the complainant's right to be heard on merits,
would have better served the ends of justice.
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,
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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
offence punishable under Section 138 of the Negotiable
Instruments Act, 1881.
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Judgment Cr.APPA-927-928-929-2024
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10. From the record, it is evident that although the
complaint came to be dismissed on 24/09/2021 for want of
prosecution under Section 256 of the Code of Criminal
Procedure, the appellant had been actively pursuing the matter
prior to that date. The roznama dated 22/02/2021 shows the
complainant's counsel was present and had sought issuance of a
bailable warrant against the accused, who was absent. On
30/04/2021, the matter was adjourned in view of directions
from this Court and the District and Sessions Court, Akola,
which temporarily stalled progress. These entries indicate that
the complainant had not abandoned the proceedings nor shown
any consistent disregard for the process of law. While it is true
that on 07/09/2021 and 24/09/2021 there was no appearance
from either side, it is equally clear that until then, the
complainant had taken steps to secure the presence of the
accused and had demonstrated an intention to prosecute the
case. In such circumstances, where absence occurs only on a
couple of dates and there exists no pattern of neglect or undue
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Judgment Cr.APPA-927-928-929-2024
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delay, the learned Magistrate was expected to exercise
discretion judiciously before invoking Section 256 CrPC to
dismiss the complaint and acquit the accused. Moreover, the
order of dismissal does not indicate that any prior notice was
issued to the complainant or that the Court had explored
alternative measures before terminating the proceedings. A
litigant should not be penalized with finality for a procedural
lapse without affording a fair opportunity, particularly in
complaints under the Negotiable Instruments Act, which are
summary in nature but entail consequences of acquittal. In such
a context, the approach adopted by the learned Magistrate
appears to be unduly rigid and warrants interference.
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
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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
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
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Judgment Cr.APPA-927-928-929-2024
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stated above, I deem it appropriate to allow the appeal. Hence,
the following order:-
ORDER
(i) The Appeal is allowed.
(ii) The impugned orders passed by the
learned Judicial Magistrate First Class, (Court
No.2), Akola, in Summary Criminal Case
Nos.5693/2019, 5694/2019 and 5695/2019 dated
24/09/2021, 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, are quashed and set
aside.
(iii) Summary Criminal Case Nos.5693/2019,
5694/2019 and 5695/2019 dated 24/09/2021,
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Judgment Cr.APPA-927-928-929-2024
stands restored to file at its original stage and the
matters are 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
may grant adjournment in exceptional
circumstances.
(vi) The above order is subject to payment of
costs of Rs.10,000/- in each appeal. The cost shall
be deposited by the appellant in the Trial Court.
The said cost shall be paid to the respondent.
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Judgment Cr.APPA-927-928-929-2024
(vii) The appeal is disposed of, accordingly.
[ M. M. NERLIKAR, J ]
PIYUSH MAHAJAN
