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2018 DIGILAW 1395 (BOM)

Smita @ Shakuntala W/o Ravindra Wasnik v. Kalpana W/o Shami Suryawanshi

2018-06-14

SWAPNA JOSHI

body2018
JUDGMENT Swapna Joshi, J.(Oral) - The present appeal has been filed by the original complainant against order of acquittal dated 15.11.2017 passed by learned 29th Joint Civil Judge Junior Division and Judicial Magistrate First Class, Special Court for 138 N.I. Act, Nagpur in Summary Criminal Case No. 4144/2016 whereby learned Judge of the Court below acquitted respondent No.1/accused (hereinafter referred to as, "the accused") under section 138 of the Negotiable Instruments Act, 1881. 2. Heard learned counsel Shri A.R. Prasad for the appellant/complainant, learned counsel Shri Y.B. Mandpe for the accused, and learned Additional Public Prosecutor Shri I.J. Damle for the State. With their assistance, I have carefully gone through the record and proceedings of the case. 3. Brief facts of the case are as under: The appellant/complainant is doing a business of money lending. She executed a Power of Attorney in the name of her husband Ravindra s/o Dashrath Wasnik. The accused was acquainted to the appellant/complainant since last several years. In the month of March 2015, the accused demanded hand loan of Rs. 2.00 lacs for the purpose of marriage in her family. As the accused requested the appellant/complainant to give hand loan for 2 months, the appellant/complainant, who is moneylender, has given hand loan of Rs. 1,60,000/. Since hand loan was given only for 2 months, the appellant/complainant asked the accused to return her the said amount. Therefore, the accused issued a cheque bearing No.044227 for Rs. 1,60,000/on 13.1.2016 drawn on the Bank of Maharashtra, Branch Jaripatka, Nagpur to the the appellant/complainant. Since the cheque was dishonoured, the appellant/complainant has filed a criminal complaint against the accused. 4. A date was fixed for evidence of the appellant/complainant. However, evidence on affidavit and original documents were filed by the appellant/complainant on record. Learned Judge of the Court below passed order at Exhibit-1 that in case of failure of the appellant/complainant to adduce the evidence, necessary order would be passed. On 15.11.2017, since the appellant/complainant remained absent, the impugned order has been passed by learned Judge of the Court below. 5. Learned counsel for the appellant/complainant contended that since the appellant/complainant was not keeping well on the date of the evidence, she could not remain present in the Court. He relied upon the medical certificate of the appellant/complainant issued by the medical officer. He also tendered a receipt in respect of the medicines. 6. 5. Learned counsel for the appellant/complainant contended that since the appellant/complainant was not keeping well on the date of the evidence, she could not remain present in the Court. He relied upon the medical certificate of the appellant/complainant issued by the medical officer. He also tendered a receipt in respect of the medicines. 6. On the contrary, learned counsel Shri Y.B. Mandpe for the accused contended that since the appellant/complainant remained continuously absent in the Court, learned Judge of the Court below has rightly passed the order of acquittal in favour of the accused. 7. In view of the fact that the appellant/complainant has properly explained the reason for her absence in the Court, I do not find any hurdle to give an opportunity to the appellant/complainant to appear before the Court to adduce her evidence. So also, the parties undertake that they shall make all possible attempts for settlement of the matter. 8. In that view of the matter, following order is passed: ORDER (i) On appellant/appellant paying costs of Rs. 1,000/to the Vidarbha Lady Lawyer''s Association at Nagpur, the criminal appeal stands allowed. (ii) The order of acquittal dated 15.11.2017 passed by learned 29th Joint Civil Judge Junior Division and Judicial Magistrate First Class, Special Court for 138 N.I. Act, Nagpur in Summary Criminal Case No.4144/2016 is hereby quashed and set aside. (iii) The parties shall appear before learned Judge of the Court below on 3.7.2018 and they shall make all possible efforts for settlement of the matter. (iv) With this order, the criminal appeal stands disposed of accordingly.