Bombay High Court found itself in a very peculiar condition when another judgment of Supreme Court came to its notice and therefore, it changed the view pronounced in open court and given the party to argue the matter afresh.
A bench of Justice Modak passed the order in the case titled as Rambhau Tulsiram Bhusari vs Assanand Dhanumal Vensiani on 22.10.2019..
The High Court observed "In this appeal after hearing the appellant, I have dictated the order on 27-09-2019 by sitting on the dais. At that time, I have decided to allow the appeal. However, prior to signing the order, another view of Hon’ble Supreme Court in case of Yogendra Pratap Singh vs Savitri Pandey and another, reported in (2014) 10 SCC 713 came to my notice".
It further observed "So, I have brought it to the notice of learned Advocate for the appellant on 11-10-2019. Learned Advocate Shri Tiwari accepted his fault in not bringing it to my notice the ratio laid down in Yogendra’s case (supra). According to him, it was due to oversight and it was unintentional. I have accepted it. Then Shri Tiwari argued the matter afresh and relied upon number of judgments. On this background, now I am dealing with the controversy on the basis of the latest view".
Factual controversy was in respect of premature complaint and it is noted by the High Court as "The cheque got dishonoured for the reason ‘insufficient funds’. The accused failed to make payment in spite of receipt of a constructive notice dated 23-05-2006. On this background, the complainant approaches the trial Court vide complaint dated 15-06-2006. The complainant gave evidence. Accused himself also gave evidence. After hearing arguments, learned Magistrate acquitted the accused. It was for the reason that complaint was filed at premature stage. That is to say the accused was not given 15 days clear time in making the payment".
High Court then arrived at Conclusion on facts as "So, the learned Magistrate was right in holding that complaint was filed earlier to accrual of the cause of action and hence not maintainable. Now the question arises whether the judgment of acquittal is to be confirmed or is to be interfere with".
However, the High Court given some relief to the complainant as "I think in the present case the order of acquittal cannot be interfered with. It is important to note that the learned Magistrate except answering the issue of maintainability on the ground of premature filing has not decided other issues. So the complainant can be permitted to file a fresh complaint within 30 days from today".
Read the Order here:
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