[Cites 2, Cited by 0]
Bombay High Court
Vinod Mohan Harinkhede vs Ishwarlal Dharmaji Pardhi on 13 January, 2026
2026:BHC-NAG:526
Judgment appa992.25
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION [APPA] No. 992/2025.
(CRIMINAL APPEAL STAMP NO. 7586/2025.)
Vinod s/o Mohan Harinkhede,
Aged about 51 years, Occupation
Service, resident of Tirora, Tahsil Tirora,
District Gondia. ... APPLICANT.
VERSUS
Ishwarlal s/o Dharmaji Pardhi,
Aged about 52 years, Occupation - Business,
Resident of c/o. Saghrame Sir, Vinoba Bhave
Nagar, infront of ITI, Tumsar, Tahsil Tumsar,
District Bhandara. ... NON-APPLICANT.
---------------------------------
Mr. V.R. Borkar, Advocate for the Applicant/Appellant.
Mr. S.G. Karmarkar, Advocate the Non-applicant/Respondent.
----------------------------------
CORAM : M.M. NERLIKAR, J.
DATE : JANUARY 13, 2026.
Rgd.
Judgment appa992.25
2
ORAL JUDGMENT :
Heard. Leave granted.
Admit.
By consent of learned Counsel appearing for the parties,
the matter is taken up for final disposal.
2. The present appeal is preferred by the appellant against
the order dated 08.06.2023 passed by the Chief Judicial Magistrate,
Gondia below Exh.1 in S.C.C.No.2007/2017 and order passed by the
Sessions Judge, Gondia on 17.02.2025 in Criminal Revision
No.35/2023. The complaint filed by the appellant under Section 138
of the Negotiable Instruments Act, came to be dismissed in view of
Section 256 of the Code of Criminal Procedure, and the respondent/
accused is acquitted of the offence punishable under Section 138 of
the Negotiable Instruments Act on the ground that though the case
was adjourned from time to time, for one or the other reason and that
the complainant could not be cross-examined. Against which
Criminal Revision was preferred by the appellant, which came to be
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Judgment appa992.25
dismissed, being an appeal against acquittal, as not maintainable.
Hence, this appeal.
3. The learned Counsel appearing for the appellant submits
that the Court below ought not to have dismissed the complaint under
Section 256, and ought not to have acquitted the accused for the
reason that the case was adjourned for one or the other reason, which
could be gathered from the roznama on record with this appeal. He
further submits that on 02.01.2023, though the complainant was
absent, his Advocate was present. On that date certain documents
were filed, and those documents were exhibited. On next date i.e. on
14.02.2023, the Advocate for complainant was present, however, the
accused and his Advocate were absent, and accordingly the matter was
posted for cross-examination of the complainant. Though the matter
was kept on 02.03.2023 and on that date though the complainant was
absent, his Advocate was present. On that date again certain
documents were exhibited. The matter was kept again for cross-
examination of the complainant, and the matter was adjourned to
21.03.2023, on which date also the complainant was absent, however,
Rgd.
Judgment appa992.25
his Advocate was present, but, the Advocate for the accused was
absent, and therefore, again the matter came to be adjourned to
25.04.2023. On 25.04.2023, the complainant was absent and his
Advocate was present. On that date another Advocate appeared on
behalf of the accused, and sought time for cross-examination and
accordingly the matter was adjourned to 29.05.2023. On
29.05.2023, an application came to be moved by the Advocate for the
complainant for grant of adjournment. The matter was adjourned to
08.06.2023, subject to payment of costs of Rs.500/-. Again on
08.06.2023, the complainant as well as his Advocate, so also the
accused and his Advocate were also absent. Impugned order came to
be passed on the said date.
4. The learned Counsel for the appellant submits that the
Trial Court ought not to have passed the impugned order and could
have considered the case on merits. He further submits that he is
ready and willing for cross-examination. He further submits that due
to one or the other reason, the matter came to be adjourned, and
therefore, absenteeism of the appellant is not deliberate or willful. He
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Judgment appa992.25
submits that the trial Court ought to have considered the case on
merits by giving an opportunity to the appellant, as he has already
filed affidavit of examination-in-chief. Lastly, it is submitted that he is
ready and willing to comply with the order dated 29.05.2023, passed
at Exh.49, wherein costs of Rs.500/- came to be imposed. He further
submits that one opportunity may be granted so that the matter can be
decided on merits.
5. On the other hand, the learned Counsel appearing for the
non-applicant/respondent, by filing reply submits that the Court
below has rightly passed the impugned order dismissing the complaint
of complainant. Infact several opportunities were granted, still the
complainant/ appellant was not available for cross-examination. He
further submits that the learned Courts below have exercised their
jurisdiction well within their domain. He submits that if the roznama
is perused, it shows that the complainant was consistently absent and
therefore, there was no alternative left with the trial Court, but, to
dismiss the complaint of the complainant for want of prosecution. He
further submits that even the order of costs imposed on the
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Judgment appa992.25
complainant, is not complied with by the appellant. He lastly submits
that there is no merits in the appeal, and the same be dismissed.
6. Upon consideration of the rival submissions of the
parties, it appears that admittedly the appellant has filed affidavit of
examination-in-chief. The matter was posted for cross-examination of
the complainant. It further appears that consistently the appellant/
complainant had remained absent, however, it could be further
gathered from the roznama that several documents were exhibited on
few dates, as observed above. It would be further gathered from the
roznama, that when the complaint was dismissed, on that date the
complainant, as well as the accused and their Advocates were absent.
Considering the above facts and circumstances, the Court ought to
have granted one more opportunity to the appellant to make himself
available for cross-examination, however, by taking a hyper-technical
view, the Court below has dismissed the complaint of the appellant.
7. It will be useful to refer to the judgment of this Court in
the case of Shaikh Akbar Talab .vrs. A.G. Pushpakaran & Another
Rgd.
Judgment appa992.25
(2018 ALL MR (Cri) 1208), and refer 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."
8. No doubt the complainant/appellant was absent on
various dates, however, as submitted by the learned Counsel for the
appellant that one last opportunity be granted to the appellant.
Considering above facts and circumstances, and accepting the
statement made that the appellant would be available for cross-
examination on the given date, I am inclined to grant the relief to the
appellant, by quashing and setting aside the impugned order.
However, this order shall be subject to payment of costs of
Rs.30,000/- to the respondent by the appellant. The costs be
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Judgment appa992.25
deposited with the trial Court and after its deposit the respondent will
be at liberty to withdraw the same. In view of above, the following
order is passed.
ORDER
(i) Criminal Appeal is allowed and disposed of.
(ii) The order dated 08.06.2023 passed by the Chief
Judicial Magistrate, Gondia below Exh.1 in S.C.C.
No.2007/2017 is hereby quashed and set aside.
(iii) The matter is restored back to the file of Chief Judicial
Magistrate, Gondia for its disposal in accordance with
law. The appellant to appear before the trial Court on
03.02.2026.
(iv) This order is subject to payment of costs of Rs.30,000/-
by the appellant, which the appellant shall deposit with
the trial Court before 03.02.2026. The appellant shall
also comply with the order below Exh.49. If the costs
are not deposited within the stipulated time, the court
below may pass appropriate order. If the costs is
deposited, the respondent is at liberty to withdraw the
same.
JUDGE
Rgd.
Signed by: R.G. Dhuriya (RGD)
Designation: PS To Honourable Judge
Date: 14/01/2026 18:22:48
