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2012 DIGILAW 912 (BOM)

Nilesh Nilkant Walke v. Rukmanand S. Dhane

2012-05-02

F.M.REIS

body2012
Judgment : Heard Shri D. Pangam, the learned Counsel appearing for the appellant, Shri G. Agni, the learned Counsel appearing for respondent no.1 and Shri C.A. Ferreira, the learned Public Prosecutor appearing for respondent no.2. 2. Admit. Heard finally with the consent of the learned Counsel. The learned Counsel appearing for the respondents waive service. 3. The above appeal challenges the judgment passed in case no.445/P/2007/E dated 9/05/2011, whereby the complaint lodged by the appellant under Section 138 of the Negotiable Instruments Act, 1881 came to be dismissed for default. 4. Shri Pangam, the learned Counsel appearing for the appellant has pointed out that on the relevant date the evidence of the complainant was complete and that the matter was posted for cross-examination of one of the witnesses of the accused. The learned Counsel further pointed out that as the evidence of the complainant was already recorded the learned Judge has exceeded its jurisdiction in dismissing the complaint for default, when the learned Judge could have at the most closed the cross-examination of the appellant. The learned Counsel has taken me through the roznama and records and proceedings of the case and pointed out that the findings of the learned Judge that the complainant has abundant the proceedings is not correct. The learned Counsel, as such, submits that the impugned order deserves to be quashed and set aside. 5. Shri G. Agni, the learned Counsel appearing for the respondent no.1 has supported the impugned judgment. The learned Counsel further does not dispute that on the relevant date the evidence of the complainant was already completed and the matter was posted only for the cross-examination of the witness of the accused. The learned Counsel does not dispute that on the earlier date the advocate of the appellant was present and he had sought adjournment in view of the absence of the advocate appearing for the appellant. 6. I have carefully considered the submissions of the learned Counsel. I have also perused the impugned order passed by the learned JMFC and the records and proceedings. Taking note of the fact that the evidence of the complainant was already completed and the matter was posted for the cross-examination of one of the witnesses of the accused, the learned Judge was not justified to dismiss the complaint for default. I have also perused the impugned order passed by the learned JMFC and the records and proceedings. Taking note of the fact that the evidence of the complainant was already completed and the matter was posted for the cross-examination of one of the witnesses of the accused, the learned Judge was not justified to dismiss the complaint for default. The learned Judge could have proceeded to close the cross-examination of the said witnesses, if he so found it appropriate. 7. Considering the facts and circumstances of the case and taking note of the fact that the complainant had justified the absence on the relevant date as the mother of the complainant had got sick all of a sudden and in support thereof a medical certificate has been produced of the hospital Vrindavan, I find that there was sufficient justification for the absence of the complainant on the said date. 8. In view of the above, in the peculiar facts and circumstances of the case, I find that the learned Judge was not justified to dismiss the complaint filed by the appellant. The impugned order dated 9/05/2011 as such cannot be sustained and deserves to be quashed and set aside and the learned JMFC be directed to dispose of the criminal case filed by the appellant in accordance with law. 9. In view of the above, I pass the following order: ORDER (i) The impugned order dated 9/05/2011 is quashed and set aside. (ii) The case No.445/P/2007/E is restored to the file of the learned JMFC, Mapusa. (iii) The learned JMFC, Mapusa is directed to proceed with the trial of the proceedings after hearing the parties in accordance with law. (iv) The appeal stands disposed of. (v) The parties are directed to appear before the learned JMFC, Mapusa on 29/06/2012 at 10.00 a.m.