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2018 DIGILAW 1371 (BOM)

Namita v. Manoj

2018-06-12

SWAPNA JOSHI

body2018
JUDGMENT Swapna Joshi, J. (Oral) - Admit. With the consent of learned counsel appearing for respective parties, the Appeals are heard finally and disposed of by this common judgment. 2. The above-referred three Appeals have been directed against the order dated 30th June, 2017 delivered by the learned 28th Civil Judge, Junior Division, Nagpur in SCC Nos.13370, 13763 and 13762 all of 2015 whereby the learned Magistrate has dismissed the complaint filed by the complainant against the respondent (hereinafter referred to as "the accused") and acquitted the accused for offence punishable under section 138 of the Negotiable Instruments Act ( "N.I. Act"). 3. The facts of the case, in brief, are that, the appellant is the original complainant and the respondent is the original accused in Summary Criminal Case Nos. 13770/2015, 13763/2015 and 13762/ 2015. The appellant and the accused started a partnership business in the name and style as ''M/s Sahyadri Paints'' by executing a partnership deed dated 8.10.2010. It is the case of the complainant that the a dispute arose in the said business in day-to-day operations of the firm. It was, therefore, mutually agreed between the parties to dissolve the partnership and accordingly by a deed of dissolution dated 14.11.2014, the partnership firm named-above, was dissolved. It was decided that the respondent should pay the appellant an amount of Rs. 16 lakhs towards share capital of the business and the accused would thereafter be the sole owner of the partnership business. Accordingly, cheques were issued bearing Nos. 088833 for an amount of Rs. 3,50,000/- ; 088831 for Rs. 3,00,000 and 088832 for an amount of Rs. 3,00,000 respectively, all drawn on Union Bank of India, Gokulpeth Branch. It is the case of the complainant that all the three cheques were dishonoured and, therefore, the appellant was constrained to lodge a criminal complaint under section 138 of the N.I. Act. 4. During the 138 proceedings when the case was pending for crossexamination of the complainant, the complainant remained absent and, therefore, on 1.6.2017, order was passed below Exh.1 by the learned Magistrate and the matter was kept for dismissal. Since the complainant failed to remain present in the Court, 138 proceedings came to be dismissed by the learned Magistrate and the accused was acquitted of the offence punishable under section 138 of N.I. Act. The said order dated 30th June, 2017 is impugned in the instant Appeals. 5. Since the complainant failed to remain present in the Court, 138 proceedings came to be dismissed by the learned Magistrate and the accused was acquitted of the offence punishable under section 138 of N.I. Act. The said order dated 30th June, 2017 is impugned in the instant Appeals. 5. Mr. V.V.Dahat, learned Advocate for the appellant vociferously argued that during the pendency of the proceedings under section 138, Summary Civil Suit No. 176/2016 came to be filed by the appellant before learned Civil Judge, Senior Division, Nagpur and in the said summary suit proceedings, the accused remained present. He further pointed that the parties were referred for mediation by the learned Judge on 22.6.2017; the report of the mediation was received by the court regarding failure of mediation. 6. Learned Advocate for the appellant placed reliance upon the judgment of this Court, in the case of Daulatrao Patil vs. Subhash Mankar, reported in 2010 ALL MR Cri. 714 , wherein it is held that if the absence of complainant is duly explained, opportunity deserves to be granted to the complainant to prosecute the complaint. The learned Advocate for the appellant contended that since the proceedings were pending before the mediator, the appellant was under the bona fide impression that after the mediation proceedings were over, she would attend the 138 proceedings before the learned Magistrate and, therefore, she remained absent in the Court. He submitted that he has satisfactorily explained the reason for the absence of the appellant in the Court on the date of dismissal of 138 proceedings. 7. Per contra, Mr. R.B.Mehadia, learned counsel for the respondent contended that the appellant has deliberately remained absent in the Court of learned Magistrate and avoided 138 proceedings for a period of about six months. It is submitted that due to her long absence, the learned Magistrate, has dismissed the compliant under section 138 of the NI Act. 8. On hearing both sides and on a perusal of the case papers, I am convinced that since the proceedings in the Summary Civil Suit were pending before the learned Civil Judge, Senior Division and since the mediation process was going on, the appellant remained absent in the Court of learned Magistrate in 138 proceedings. 8. On hearing both sides and on a perusal of the case papers, I am convinced that since the proceedings in the Summary Civil Suit were pending before the learned Civil Judge, Senior Division and since the mediation process was going on, the appellant remained absent in the Court of learned Magistrate in 138 proceedings. In view of the fact that the appellant has satisfactorily explained the reason for her absence on the date of dismissal of 138 proceedings, the Appeals need to be allowed. Hence the following order: ORDER i) Criminal Appeal Nos. 24/2018, 25/2018 and 29/2018 are hereby allowed, subject to payment of costs of Rs. 500/- in each of the Appeals, to be paid to the High Court Bar Association Library, Nagpur. ii) SCC Nos. 13770/2015, 13763/2015 and 13762/2015 are remanded to the Court below and the proceedings are restored back to its original position. iii) Both the Advocates undertake that they would make efforts for settlement of the proceedings under section 138 of the N.I. Act. The parties to appear before the Court below on 3rd July 2018. (iv) In view of disposal of the Appeals, Criminal Application Nos.293/2018, 292/2018 and 294/2018 do not survive. They are disposed of accordingly.