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2018 DIGILAW 1103 (BOM)

Umashankar Jokhuram Shahu v. Pramod

2018-04-20

V.M.DESHPANDE

body2018
JUDGMENT V.M. Deshpande, J. (Oral) - Heard Shri P. K. Dhomne, the learned counsel for the appellant and Mr. U. P. Sapkal, the learned counsel for the respondent. 2. On 09.3.2018, this Court (Coram : R. B. Deo, J.) has admitted the appeal and while admitting the appeal, the parties were put on notice that the appeal will be finally disposed of on 02.4.2018. On 02.4.2018, the matter was adjourned at the request of Mr. Sapkal, the learned counsel for the respondent for two weeks. 3. The present appeal is filed by the original complainant, who filed a complaint against the respondent for the offence punishable under section 138 of the Negotiable Instruments Act, 1881. The complaint was registered as Summary Criminal Complaint Case No. 8677/2014. After the process was issued, the respondent appeared and was released on bail. The matter proceeded further and the record shows that the examination-in-chief and cross-examination of the appellant/complainant was completed. Thereafter, the statement of respondent/accused under section 313 of the Code of Criminal Procedure, 1973 was also recorded. Thereafter, nobody appeared on behalf of the complainant. The learned 32nd Joint Judicial Magistrate, First Class and Special Court for 138 N.I. Act, Nagpur, on 29.6.2017, found that since long the complainant is continuously absent and not interested in proceeding with the matter and therefore, acquitted the respondent/accused. 4. Mr. Dhomne, the learned counsel for the appellant submitted that the appellant was present before the Court on 02.3.2017, however, the matter was adjourned to 03.4.2017. He submitted that there was some communication gap between him and his Advocate and consequently he could not remain present on subsequent two dates. 5. I have perused the certified copy of Roznama placed on record along with pursis Stamp No. 306/2018. The respondent/accused is acquitted mainly on the ground that the complainant remained absent on two dates. Though, this Court is not approving the attitude on the part of the litigant of not remaining present before the Court on the fixed date, it is to be noted that this particular approach adopted by the Court below, in my view, is not correct because, since the evidence was already over, the matter could have been decided on merits by the learned Magistrate. Therefore, though there is a serious objection from Mr. Sapkal, the learned counsel for the respondent, I feel that the opportunity should be given to the complainant. Therefore, though there is a serious objection from Mr. Sapkal, the learned counsel for the respondent, I feel that the opportunity should be given to the complainant. Hence, I pass the following order : Order 1. The criminal appeal is allowed. 2. The order passed by the learned 32nd Joint Judicial Magistrate, First Class, and Special Court for 138 N.I. Act, Nagpur, dated 29.6.2017 in Summary Criminal Complaint Case No. 8677/2014, acquitting the respondent, is hereby set aside. 3. Summary Criminal Complaint Case No. 8677/2014 is hereby restored to the file. 4. Both the parties agreed to appear before the Court of the learned Magistrate on 11.6.2018. In that view of the matter, there is no necessity of issuance of fresh summons to the respondent. 5. After appearance of the appellant/complainant and the respondent/accused before the learned Magistrate, the learned Magistrate shall release the respondent/accused on he executing PR bond of Rs. 1,000/- (Rupees One thousand only). 6. On 11.6.2018, the appellant/complainant shall deposit Rs. 2,500/- in the Court of learned Judicial Magistrate, First Class, Nagpur by way of costs to the respondent. On such deposit of the amount, the respondent will be entitled to withdraw the said amount without any objection from the complainant. 7. If the amount of Rs. 2,500/- is not paid on 11.6.2018, then the order dated 29.6.2017 shall automatically revive. 8. The appellant/complainant and the respondent/accused shall extend their full cooperation to the learned Magistrate for early disposal of the case and the learned Magistrate is hereby directed to decide and dispose of the complaint case within a period of Ten months from appearance of the parties i.e. 11.6.2018. 9. With this, the criminal appeal is allowed and disposed of.