Madhya Pradesh High Court
Mohsin Hussain vs Azaz Khan on 7 May, 2024
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
ON THE 7 th OF MAY, 2024
CRIMINAL APPEAL No. 12054 of 2022
BETWEEN:-
MOHSIN HUSSAIN S/O SHRI SHAFI HUSSAIN, AGED
ABOUT 37 YEARS, OCCUPATION: BUSINESS 13,
SHARAFAT NAGAR, KHAJARANA (MADHYA PRADESH)
.....APPELLANT
(SHRI VIJAY SHARMA - ADVOCATE)
AND
AZAZ KHAN S/O SHRI RAHMAN KHAN, AGED ABOUT 42
YEARS, OCCUPATION: BUSINESS HOUSE NO. 1, NEAR
NARSINGH MANDIR, CHHAVANI AGAR MALWA
(MADHYA PRADESH)
.....RESPONDENTS
(MS. PAYAL AGRAWAL - ADVOCATE)
T h is appeal coming on for orders this day, t h e cou rt passed the
following:
ORDER
Heard on I.A. No.10896/2022, an application for grant of leave filed on
behalf of the appellant against the judgment of acquittal dated 23.08.2022
passed by J.M.F.C, Indore, in Criminal Case No.7042540/2016.
2 . The appellant has filed the present Criminal Appeal under Section
378(4) of Cr.P.C. being aggrieved by the judgment dated 23.08.2022 passed by
JMFC, Indore, in Criminal Case No.7042540/2016, whereby the learned trial
Court has acquitted the respondent from the charges under Section 138 of the
Negotiable Instruments Act 1881.
2. Learned counsel for the appellant submitted that appellant had filed a
complaint before the learned J.M.F.C, Indore for offence punishable under
Section 138 of N.I. Act, 1881, with the averments that the respondent received
Rs.35.00 lakhs from the appellant on account of sale of agricultural land in
favour of appellant's mother. However, the respondent did not execute the sale
deed and expressed his inability to perform the agreement and to return the
money received by him he issued two cheques. When the cheques were
presented in bank for realization the same were returned with remarks of
insufficient funds.
3. Counsel for the appellant submitted that a demand notice was sent to
respondent and thereafter complainant filed a compliant, the same was
registered as criminal case No.7042540/2016 before Judicial Magistrate First
Class, Indore in which respondent marked his appearance and the case was
fixed for recording the plea of the respondent. On that date i.e. 23.08.2022
appellant could not appear before the trial Court and the case was dismissed
and the respondent was acquitted from the aforesaid offence.
4 . Learned counsel for the appellant submitted hat the appellant was
misinformed by his counsel which resulted in non-appearance, the order against
the appellant has been passed exparte, therefore, the inference of the trial Court
is contrary to law. Counsel further submitted that the applicant is also ready to
furnish appropriate cost before the trial court therefore, he prays that one
opportunity of hearing be granted to the applicant and the matter be decided
after hearing both the parties.
6. On due consideration of the reasons assigned by counsel for the
appellant, the facts emerged from the record and the other facts &
circumstances of the case, I deem it appropriate to allow the present application
only to the extent that the appellant be granted one opportunity of hearing and
the matter be decided subsequently.
7. Accordingly, the appeal is disposed of with the direction that Subject
to deposit the cost of Rs.20000/- before the trial Court, the matter is
remanded back to the Trial Court with a direction that the appellant should be
given opportunity to contest the case before the learned trial Court and matter
should be decided subsequently the appellant. It is also made clear that in case,
the appellant fails to appear before the trial Court, the case shall not be
adjourned for whatsoever reason.
8. With the aforesaid, the appeal stands disposed of.
A copy of this order be sent to concerned trial Court for necessary
compliance.
(PREM NARAYAN SINGH)
JUDGE
sumathi
