Bombay High Court
Amit Sunarlal Shahu vs Hare Madhav Electronics Thr. Prop. ... on 9 September, 2025
2025:BHC-NAG:8844
Judgment 54-CR.APPEAL-2237-2023
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION [APPA] NO.322 OF 2023
IN
CRIMINAL APPEAL [STAMP] NO. 2237 OF 2023
...
Amit Sunarlal Shahu,
Aged about 35 years, Occupation - Service,
R/o. Deorao Baba Chawl, Rajputpura,
Akola, Tah. and District - Akola.
... APPELLANT
--VERSUS--
Hare Madhav Electronics,
Through its Proprietor,
Vijay Motilal Pinjwani,
Aged major, Occupation Business,
R/o. C/o. Near Rayat Haveli, Gajanan Market,
Shop No.5, Tilak Road, Akola,
Tah. and District - Akola.
... RESPONDENT
-------------------------------------------------------------------------------------
Mr. U.V. Chakravarty, Advocate h/f. Mr. A.M. Tirukh, Advocate
for the Appellant.
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PIYUSH MAHAJAN
Judgment 54-CR.APPEAL-2237-2023
2
CORAM : M.M. NERLIKAR, J.
DATE : SEPTEMBER 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 07/01/2023 passed below
Exh.1 by the learned Additional Chief Judicial Magistrate,
Court No.5, Akola, in Summary Case No.1989/2019. 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 the appellant /
complainant and the respondent / accused are well acquainted
with each other and have cordial relations. On 07/12/2018,
PIYUSH MAHAJAN
Judgment 54-CR.APPEAL-2237-2023
respondent / accused approached the appellant and demanded
Rs.2,50,000/- for business purpose. The appellant gave
Rs.2,50,000/- to the respondent as a hand loan on his
assurance that he would repay the same to the appellant within
a period of one month. Thereafter, the respondent / accused
towards discharge of his legal liabilities, issued a cheque of
Rs.2,50,000/- to the appellant. Upon presentation of the
cheque, it was dishonoured and accordingly the appellant filed
a complaint under Section 138 of the Negotiable Instruments
Act, 1881, against the respondent, which was registered as
Summary Criminal Case No.1989/2019 on 03/04/2019. After
registration of the Summary Criminal Case, it seems that the
case was adjourned from time to time. On 05/01/2023, the
Additional Chief Judicial Magistrate, Court No.5, Akola, passed
the following order :-
" The Complainant and his counsel repeatedly
called, but no one present through complainant side till 4.00
p.m. The matter is pending for evidence of complainant. In
absence of complainant matter could not proceed further.
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Judgment 54-CR.APPEAL-2237-2023
Thus, complainant is directed to appear and lead evidence on
next date otherwise the matter will be disposed of for want
of prosecution."
Subsequently on 07/01/2025, the learned Additional
Chief Judicial Magistrate, Court No.5, Akola, passed the
following impugned order:-
" On perusal of proceeding, it appears that same is
instituted in the year 2019. Since long, it was pending for
evidence, but complainant failed to lead evidence. Thus, on
05.01.2023 order passed below Exh. 1 and matter posted for
dismissal order. Even today, whenever called the
complainant is not appeared before the Court and not taken
any steps. Record shows that the complainant is not
interested to proceed with the matter. Hence, the matter is
dismissed for want of prosecution. Accused is acquitted."
5. The learned counsel for the appellant submits that
the order dated 07/01/2023 ought not to have been passed by
the learned Magistrate, as the appellant was regularly
prosecuting and attending the Court. However, the matter was
referred to the Lok Adalat to explore the possibilities of
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Judgment 54-CR.APPEAL-2237-2023
settlement between the parties. He further submits that since
no settlement was arrived between the parties, the case was
fixed for filing of the affidavit of evidence of the complainant
on 21/07/2022. However, only on two occasions, the affidavit
of complainant could not be filed. On 23/11/2022 and
13/12/2022, though the appellant and his counsel were
present in the Court, but the Presiding Officer was on leave on
both dates. He further submits that on 13/12/2022, a request
was made to the concerned clerk of the Court to fix the matter
on 13/01/2023, however, inadvertently, the clerk listed the
matter on 05/01/2023. The learned counsel appearing in the
matter remained under the impression that the next date was
13/01/2023, and therefore, on 05/01/2023 and 07/01/2023,
inadvertently, the complainant and the counsel remained
absent. It is neither intentional nor deliberate act, and
therefore, prayed to quash and set aside the order dated
07/01/2023.
PIYUSH MAHAJAN
Judgment 54-CR.APPEAL-2237-2023
6. The learned counsel for the appellant relied on the
judgment 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:
" In all these cases 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."
7. The respondent/non-applicant though served has not
appeared. This Court, by order dated 15/03/2023, was pleased
to issue notice to the respondent, and it was made returnable
on 23/03/2023. The record indicates that the sole respondent
is served, however, none appears on behalf of the
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Judgment 54-CR.APPEAL-2237-2023
respondent/non-applicant. Again on 31/10/2023, this Court
adjourned the matter to 28/11/2023, observing that "(2). Non-
applicant is served though not appeared. (3). In order to give
one chance to appear before this Court to the non-applicant,
stand over to 28.11.2023.". Thereafter, the matter was again
adjourned on 28/11/2023 and also on 15/02/2024. However,
the non-applicant/respondent has chosen not to appear in the
present proceedings. Therefore, considering that the present
proceeding pertains to the year 2023, I have decided to proceed
further.
8. I have perused the order passed below Exh.1,
wherein, the learned Court below was pleased to dismiss the
complaint for want of prosecution, and the accused was
acquitted. It appears that the said order was passed under
Section 256 of the Code of Criminal Procedure. I have also
examined the roznama placed on record from Page Nos.19 to
23 of the application. It seems from the roznama that on
PIYUSH MAHAJAN
Judgment 54-CR.APPEAL-2237-2023
several occasions, the appellant as well as his counsel were
present and also on few occasions they were absent. It is also
noticed that on two or three occasions, the Court was not
available. On 22/04/2022, the roznama reflects that the
counsel for the appellant was present and the matter was
referred to the Lok Adalat. On 21/07/2022, the present
appellant was present, the counsel for the appellant was also
present, however, the Presenting Officer was on leave. On
11/08/2022, the counsel as well as the complainant was absent
and the matter was adjourned to 21/09/2022. On 21/09/2022,
the appellant was absent, however, the counsel was present.
On 14/10/2022, the counsel for appellant was present,
however, appellant was absent, and the next date was fixed as
23/11/2022. Again, on 23/11/2022, the Presiding Officer was
on leave, so also on 13/12/2022, however, the next date was
fixed as 05/01/2023. On 05/01/2023, the appellant as well as
his counsel were absent. The case was again fixed on
07/01/2023, and on the said date, both remained absent and
PIYUSH MAHAJAN
Judgment 54-CR.APPEAL-2237-2023
the impugned order was passed. The learned counsel has
explained the reasons for their absence, stating that the counsel
for the appellant was under the impression that the matter
would be fixed on 13/01/2023, as he had informed the court
clerk to fix the date accordingly, as the Presiding Officer was
not available on 13/12/2022.
9. Considering the fact that the complaint was
dismissed for non-prosecution and the accused was acquitted
under Section 256 of the Code of Criminal Procedure, in my
opinion, the appellant has given sufficient explanation so as to
warrant interference in the order dated 07/01/2023. It is to be
noted from the roznama that the matter was referred to the Lok
Adalat, however, on certain occasions, the complainant was
absent, on certain occasions, the complainant was present, and
on certain occasions, the Presiding Officer was on leave. The
Court ought to have adopted a liberal approach, as the
appellant and his counsel diligently and sincerely attended the
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Judgment 54-CR.APPEAL-2237-2023
Court on multiple occasions. Merely on few occasions, if both
are absent, that by itself would not be sufficient to pass the
order of dismissal for non-prosecution and thereby acquittal of
the accused. 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. Therefore, I am inclined to grant leave to prefer the
appeal.
10. It is necessary to mention at this juncture that the
learned Magistrate acquitted the accused under Section 256 of
the Cr.P.C. as both the appellant and his counsel were absent
on last two occasions, which are noted above. However,
considering the reasons mentioned by the appellant for his
absence, that he was under impression that the Court clerk
would give him the date for which he had requested, in my
opinion, is a sufficient explanation to interfere in the order of
dismissal for non-prosecution. The observations of this Court
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Judgment 54-CR.APPEAL-2237-2023
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
state above, I deem it appropriate to allow the appeal. Hence,
the following order:-
ORDER
(i) The Appeal is allowed.
PIYUSH MAHAJAN
Judgment 54-CR.APPEAL-2237-2023
(ii) The impugned order passed by the
Learned Additional Chief Judicial Magistrate, Court
No.5, Akola, in Summary Case No.1989/2019,
dated 07/01/2023, 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) Summary Criminal Case No. 1989/2019,
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
22/09/2025.
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Judgment 54-CR.APPEAL-2237-2023
(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
cost of Rs.2,000/-. 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
