Madhya Pradesh High Court
Sanjay Sharma vs Swapnil on 27 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 27 th OF MAY, 2024
CRIMINAL APPEAL No. 3453 of 2024
BETWEEN:-
SANJAY SHARMA S/O VYANKATRAO SHARMA, AGED
ABOUT 54 YEARS, OCCUPATION: GOVT. EMPLOYEE
VILLAGE KARONDIYA, TEHSIL KASRAWAD, DISTRICT
KHARGONE, AT PRESENT MANDI ROAD, KASRAWAD,
TEHSIL KASRAWAD, DISTRICT KHARGONE (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI RISHIRAJ TRIVEDI, ADVOCATE)
AND
SWAPNIL S/O RAJESH KISHORE BYOHAR, AGED ABOUT
38 YEARS, OCCUPATION: BUSINESS WARD NO. 7,
BAJRANG NAGAR COLONY, JETAPUR, KHARGONE
DISTRICT KHARGONE (MADHYA PRADESH)
.....RESPONDENT
(NONE)
T h is appeal coming on for orders this day, t h e cou rt passed the
following:
ORDER
Heard on I.A. No.4299/2024, an application for grant of leave filed on
behalf of the appellant against the judgment of acquittal dated 06.02.2024
passed by J.M.F.C, West Mimar, Mandleshwar, in SCNIA No.148/2023.
2 . The appellant has filed the present Criminal Appeal under Section
378(4) of Cr.P.C. being aggrieved by the judgment dated 06.02.2024 passed by
JMFC, West Mimar, Mandleshwar, in SCNIA No.148/2023, whereby the
learned trial Court has acquitted the respondent from the charges under Section
138 of the Negotiable Instruments Act 1881.
3. 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.1,50,000/- from the appellant owing to friendly relationship. Thereafter, the
respondent did not return the money and issued a cheque of Rs.1,50,000/- for
the payment of aforesaid amount. When the cheque was presented in the bank
for realization, the same was returned with remarks of "insufficient funds".
Further, the learned trial Court took cognizance on the complaint and issued
summons to the respondent. In compliance of the same, the respondent
appeared before the trial Court. Again, case was fixed for evidence on
06.02.2024, but due to absence of appellant, the learned Court dismissed the
complaint under Section 256 of Cr.P.C. and acquitted the respondent from the
offence mentioned above.
4. Learned counsel for the appellant further contended that the trial Court
completely failed to appreciate that Section 256 of Cr.P.C. contemplates two
contingencies including the deferring of hearing and dismissal of complaint in
the absence of complainant. However, the discretion with regard to dismissal of
complaint due to non-apperance of complaint must be a last resort and the first
contingency ought to have been resorted to. The learned trial Court has also
committed an error of law while not considering that it must satisfy itself before
resorting to second contingency that the complainant has lost interest in
prosecuting the complaint and must also record reasoning before dismissing the
complaint and acquitting the accused. The applicant is also ready to furnish
appropriate cost before the trial court. On these grounds, he prays that one
opportunity of hearing be granted to the appellant and the matter be decided
after hearing both the parties.
5. 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.
6. Accordingly, the appeal is disposed of with the direction that Subject
to deposit the cost of Rs.5,000/- (Rupees Five thousand only) within a
period of 15 days before the trial Court, the matter is remanded back to the
Trial Court with a direction that the learned trial Court would fix a fresh date for
appearance of petitioner and respondent and if the respondent does not appear
on the fixed date, he be called through notice or applying proper procedure.
Thereafter, one more opportunity would be given to the appellant for adducing
his evidence. The amount of cost so deposited by the appellant, shall be given
to the respondent at the time of his appearance.
7. It is also clarified that in case, the appellant fails to deposit the cost
within stipulated period or not appear before the trial Court, the case shall not
be restored for whatsoever reason.
8. With the aforesaid, the appeal stands disposed of.
9. A copy of this order be sent to concerned trial Court for necessary
compliance.
(PREM NARAYAN SINGH)
JUDGE
Vindesh
