Seeking citation
KRISHNAN
(Querist) 04 December 2012
This query is : Resolved
Kindly suggest citations in favour the complainant to file appeal. The complaint filed by the complainant u/s. 138 of NI Act has been dismissed U/s. 256 of Cr.P.C. for his and his counsel's absent.
ajay sethi
(Expert) 04 December 2012
Bombay High Court
Terna Shetkari Sahakari Sakhar vs 2 The State Of Maharashtra on 8 April, 2011
Bench: Shrihari P. Davare
1 crap4775.10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
CRIMINAL APPLICATION NO. 4775 OF 2010
Terna Shetkari Sahakari Sakhar
Karkhana Ltd., Ternanagar (Dhoki),
through Shri Sehshrao s/o Bhaurao Chalak,
age 57 years, occ. Service, r/o Ternanagar,
Tq. & Dist. Osmanabad. ...Applicant (original complainant)
VERSUS
1 Anant s/o Laxman Ghogre,
age 39 years, occ. Contractor,
r/o Rajuri, Tq. & Dist. Osmanabad,
2 The State of Maharashtra ...Respondent (No.1 orig. accused)
.....
Shri S.B.Ghute, advocate for applicant
Shri S.B.Rohile, advocate for respondent no.1
Shri S.G.Nandedkar, A.P.P. for respondent no.2
.....
CORAM : SHRIHARI P.DAVARE, J.
DATED : 8th April, 2011
ORAL JUDGMENT : -
1 Heard learned counsel for the respective parties. 2 crap4775.10
2 This is an application, preferred by the applicant (original complainant), seeking leave to file appeal, challenging the order, dated 20.9.2010, passed by the learned Judicial Magistrate, First Class, Osmanabad, in S.C.C. No. 1079 of 2010, thereby dismissing the said complaint under Section 256 of the Code of Criminal Procedure, for want of prosecution and acquitting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act.
3 Considering the contents of the application and after considering the rival submissions advanced by the learned counsel for the parties, since the dismissal of the complaint for want of prosecution by order, dated 20.9.2010, is a technical dismissal under Section 256 of the Code of Criminal Procedure and not on merits, leave to file appeal granted. Present application be treated as appeal.
4 Admit. Shri S.B.Rohile, learned counsel waives service of notice for respondent no.1 (original accused) after admission. 5 With the consent of learned counsel for the parties, appeal is taken up for final hearing.
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6 The appellant i.e. original complainant has filed S.C.C. No. 1079 of 2001, dated 25.4.2001, against the respondent no.1 (original accused) under Section 138 of the Negotiable Instruments Act and under Section 420 of the Indian Penal Code. 7 It is the contention of the appellant that the appellant is a Cooperative Sugar Factory, registered under the Maharashtra Cooperative Societies Act, 1960. The respondent is a Labour Contractor, who had entered into an agreement with the complainant to supply the labourers and transportation for crushing of the sugarcane for the year 2000-01, and thereby obtained advance from the complainant.
8 After verifying the accounts, it was found that amount of Rs.30.893/- was due from the accused to the complainant. Hence, the accused issued cheque No. 234374, dated 27.12.2000 for Rs. 30,893/- to the complainant towards the repayment of the said dues. The complainant presented the said cheque for encashment purpose through the Osmanabad District Central Cooperative Bank Ltd., Branch Terananagar. However, the said cheque was dishonoured and returned unpaid with the endorsement, "Funds insufficient" on 1.3.2001. Hence, the complainant issued demand notice to the accused on 12.3.2001 by Registered Post A.D. and called upon the 4 crap4775.10
accused to repay the amount of the cheque and said notice was served upon the accused. However, despite service of said demand notice, the accused failed to comply with the requisitions contained therein. Hence, the complainant filed complaint before the learned Judicial Magistrate, First Class, Osmanabad against the accused under Section 138 of the Negotiable Instruments Act and under Section 420 of the Indian Penal Code.
9 After perusal of the complaint and verification, the learned Judicial Magistrate, First Class, Osmanabad issued process against the accused under Section 138 of the Negotiable Instruments Act on 27.11.2001. Accordingly, the accused appeared therein. However, on 20.9.2010, since the complainant and his advocate were absent, but the accused was present, learned Judicial Magistrate, First Class, Osmanabad dismissed the said complaint for want of prosecution and acquitted the accused by passing the order to that effect. Being aggrieved and dissatisfied by the said order, the complainant has preferred the present appeal and prayed for quashment thereof.
10 Learned counsel for the complainant submitted that on some dates the complainant was present and on some dates he was absent, but even the accused was also absent on some dates, and 5 crap4775.10
therefore, non-bailable warrant was required to be issued against him to secure his presence. Learned counsel for the complainant also canvassed that the dismissal of the complaint on 20.9.2010 is a technical dismissal under Section 256 of the Code of Criminal Procedure and the acquittal of the accused is also technical acquittal, and therefore, opportunity needs to be given to the parties to prosecute/contest the said complaint on its own merits, and hence, the impugned order deserves to be quashed and set aside. 11 According to the complainant, the vital right of the complainant in respect of dishonour of cheque is involved in the complaint, and therefore also, same deserves to be restored to its file, quashing and setting aside the impugned order, dated 20.9.2010.
12 Learned counsel for the complainant relied upon the observations made by Hon'ble Supreme Court in the case of Associated Cement Co. Ltd. Vs Keshvanand, reported at 1998 ALL MR (Cri) 689 (S.C.), which are as follows :-
"18 Reading the Section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the Section. First is, if the court thinks that in a situation it is proper to 6 crap4775.10
adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the court notices that the complainant is absent on a particular day the court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must therefore be exercised judicially and fairly without impairing the cause of administration of criminal justice. "
13 Learned counsel for the accused countered the said argument and opposed the present appeal vehemently and submitted that the Summary Criminal Case filed by the complaint is very old matter i.e. of the year 2001, but despite that position, the complainant remained absent consistently, and therefore, the learned trial Judge rightly dismissed the said complaint due to absence of the complainant on 20.9.2010. Learned counsel for the accused also pointed out that the accused was present on the said date i.e. 20.9.2010 i.e. the date of dismissal of complaint and the 7 crap4775.10
accused was acquitted of the charge levelled against him in accordance with Section 256 of the Code of Criminal Procedure. Moreover, the complainant has failed to plead and prove the sufficient ground by which he was prevented to attend the court on the relevant day i.e. 20.9.2010, and therefore, also present appeal is devoid of any merits, and hence, submitted that the same be dismissed.
14 Learned counsel for the accused also canvassed that the copy of Roznama, filed along with the present appeal, categorically makes it clear that the complainant was absent on number of dates and ultimately was absent on 20.9.2010, as well as no application was moved before the learned Trial Judge for adjournment on the said date, and hence, the learned Trial Judge rightly dismissed the said complaint and acquitted the accused and no interference therein is called for in the appellate jurisdiction.
15 Learned counsel for the respondent relied upon the judgment of this court in the case of M/s Merchant @ Somji Agro Industries & Investment (P) Ltd. Vs Mr. Brij Mehra & Anr., reported at 2003 ALL MR (Cri) 2266, in which even leave to file appeal was refused, wherein it was held that :-
"5 The present case was a case, which was to be continued in view of Chapter XX of the Code of Criminal Procedure. On the date when said complaint was presented the present appellant was not the Director of 8 crap4775.10
the said Company. On the date when the said complaint was dismissed, he was not present before the Court nor lawyer of the complainant. Shri Shaikh has placed reliance on the judgment of the Supreme Court in the matter of Mohammed Azeem vs A Venkatesh and another (Supra), but in that case, the absence was solitary one and therefore, this Court thinks that the Supreme Court was kind enough to give direction to the Magistrate to think properly and not to dismiss such cases, keeping in view the solitary absence of the complainant. But the present case, is a different case. The ratio of the judgment of the Supreme Court in Mohd. Azeem's case (Supra) would not be applicable to the present case. The Roznama shows that on the occasion i.e. on 10.1.2002, 4.4.2002 and 7.9.2002 the complainant and his advocate were absent and then last entry comes which shows that the complaint was dismissed and the present respondents were acquitted. "
16 I have perused the complaint filed by the complainant in S.C.C. No. 1079 of 2001 and the impugned order, dated 20.9.2010, passed by the learned Trial Judge on the complaint, dated 25.4.2001, as well as the order passed by the learned Judge on the said date in the Roznama, and heard the submissions advanced by the learned counsel for the parties, as well as perused the judicial pronouncements cited by the learned counsel for the parties, carefully, and at the out set, it appears, from the copy of the Roznama annexed with the present appeal, that the complainant as well as the accused remained present on the various dates as well as remained absent on the numerous dates. It also appears that due to absence of accused, non-bailable warrant was required to be issued and 9 crap4775.10
re-issued against him to secure his presence before the court. However, it further appears that the complainant remained absent consistently on three dates prior to dismissal of the complaint i.e. on 20.9.2010. It also appears that on the date of dismissal of the complaint i.e. 20.9.2010, the complainant and his advocate remained absent, whereas the accused was present when called out, and therefore, since the complainant remained absent and since no application was moved for adjournment, the complaint came to be dismissed for want of prosecution and the accused stood acquitted, canceling his bail bond. Thus, apparently it is clear that the said dismissal of the complaint on 20.9.2010 by the learned trial Judge, due to absence of the complainant, is a technical dismissal under Section 256 of the Code of Criminal Procedure and the said dismissal is not on its own merits.
17 True it is, the complainant remained absent on three consecutive dates preceding the date of dismissal of complaint i.e. 20.9.2010, and therefore, his complaint came to be dismissed on 20.9.2010 for want of prosecution, but the principles of natural justice require that due opportunity be given to the parties to adduce/produce their respective evidences before the court and matter be decided on its own merits, and therefore, the impugned order, dated 20.9.2010 of dismissal of complaint for want of prosecution deserves to be quashed and set aside. However, simultaneously, appropriate costs are required to be awarded to the accused while quashing and setting aside the impugned 10 crap4775.10
order, dated 20.9.2010. Moreover, the parties are also required tobe directed to remain present on a specific date before the Trial Court, with further direction that they shall not seek adjournment unless warranted due to emergency, and the learned Trial Judge is also required to be directed to decide the case, on its own merits, in accordance with law, expeditiously, by allowing the present appeal.
18 In the result, present appeal is allowed and the impugned order, dated 20.9.2010 dismissing the complaint of the complainant for want of prosecution and acquitting the accused, stands quashed and set aside and the matter is remitted back to the learned Trial Court, with direction to decide it on its own merits, in accordance with law expeditiously, and the complainant as well as the accused are directed to remain present before the Trial Court on 2.5.2011 at 11.00 a.m. and the parties are also directed not to seek adjournments unless warranted emergently, and to cooperate with the court to decide the matter expeditiously, subject to payment of costs of Rs.3,000/- by the complainant to the accused on or before 2.5.2011 and present appeal stands disposed of accordingly.
(SHRIHARI P. DAVARE, J.)
dbm/crap4775.10
Guest
(Expert) 04 December 2012
Dear Krishnan,
Appeal should always be based on merits of the case, not on citation of other cases, as unless circumstances are similar, even the citations prove to be exxageration of the facts with extraneous matters and go to the disadvantage of the appellant.
By the way, with reference to your request, how the experts can presume what were the compelling circumstances of absence for both the complainant as well as his advocate at the time of hearing?
R.K Nanda
(Expert) 04 December 2012
no need for citations at this stage.
KRISHNAN
(Querist) 04 December 2012
Thank you so much for your reply sirs.
R.K Nanda
(Expert) 04 December 2012
u r welcome.
KRISHNAN
(Querist) 04 December 2012
What is conginzable and non-bailable offence.
R.K Nanda
(Expert) 04 December 2012
not related to ur case.
KRISHNAN
(Querist) 04 December 2012
Sorry sir, i am not asking this question for this case. That is my another doubt sir. Then under which provision of law we have to file appeal against the order u/s. 256 Cr.P.C in the 138 case? Whether section 378 of Cr.P.C is correct or not?
ajay sethi
(Expert) 04 December 2012
yes under section 378 Cr Pc
KRISHNAN
(Querist) 04 December 2012
Thank you sir
ajay sethi
(Expert) 04 December 2012
thnaks for the appreciation
Raj Kumar Makkad
(Expert) 04 December 2012
You need to file the appeal under section 378 of Criminal procedure code and citations are not base to file such appeals.
Raj Kumar Makkad
(Expert) 04 December 2012
You need to file the appeal under section 378 of Criminal procedure code and citations are not base to file such appeals rather the citations are searched on the bases of facts of the case.
Raj Kumar Makkad
(Expert) 04 December 2012
There are thousands of citations on the appeal but how can we know the relevancy of particular citation with your case until we know the facts of your case?
KRISHNAN
(Querist) 05 December 2012
My client filed the 138 case during the year 2005 claiming an amount of Rs. 40,00,000/- which is due by the accused. Thereafter during the year 2010 the accused filed a petition to send those cheques for expert opinion. But the Judicial Magistrate dismissed his application and the High Court, Madras also confirmed the same. Thereafter, during the year 2011, the legal officer of the complainant resigned from the service. So there was no follow up in the case. Hence the Magistrate dismissed the complaint by the end of 2011 for non representation of the case. Now we have file an appeal against the said order. Is there is sufficient merit in this case? What kind of grounds we can raise against that order?
Guest
(Expert) 05 December 2012
Dear Krishnan,
Merit of course is there if the amount was actually due to be paid by the opposite party. But all that depends how the absence of the complainant without seeking exemption from appearing would be justified. Resignation of legal officer cannot be a justified ground for not pursuing the case by the applicant or his advocate, while the amount of Rs. 40 Lakhs was not a very small amount to justify careless handling or non-pursuit of the case.
ajay sethi
(Expert) 05 December 2012
check your roznama . how many dates was the complainant absent . whether accused was present on said dates . ?
in your appeal mention that from 2005 till 2011 you have attended all dates . as legal manager resigned inadvertently no one from company attended the case .
. you have nothing to lose
try your luck
KRISHNAN
(Querist) 05 December 2012
Thank you for both of your reply and for spending your valuable time for me.
Guest
(Expert) 05 December 2012
You are welcome.
Raj Kumar Makkad
(Expert) 06 December 2012
I think your query is required to be presumed as solved.
