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2018 DIGILAW 1555 (BOM)

Anuradha Sanjay Somani v. Easy Marketing

2018-06-30

Z.A.HAQ

body2018
JUDGMENT Z.A. Haq, J.(Oral) - Ms. S.M. Sarangpure, learned Advocate h/f Shri I.S. Charlewar, Advocate for respondent Nos.1 and 2 seeks adjournment. Shri R.K. Anthony, Advocate appearing for the appellant opposes the request. 2. Heard. 3. The original complainant has filed this appeal to challenge the order passed by the learned Magistrate on 16th March, 2006 by which the complaint filed by the complainant under section 138 of the Negotiable Instruments Act, 1881 is dismissed for want of prosecution and the respondent is acquitted. 4. Learned Advocate for the appellant has pointed out copy of daily board dated 21st October, 2005 on which date the case was at serial No.117 on the daily board and it was adjourned for 10th February, 2006. The learned Advocate has pointed out the copy of daily board dated 10th February, 2006 which shows that the case was at serial No.192 and it was adjourned for 27th February, 2006. The Advocate for the appellant has pointed out the copy of daily board dated 27th February, 2006 which shows that the case was at serial No.135 and the case was adjourned for 27th March, 2006. According to the complainant, when the Advocate for the complainant went to the Court on 27th March, 2006 he found that the case was not on board and then he made enquiries and found that the case was already dismissed on 16.3.2006. 5. The respondent / accused has not been able to controvert the factual aspects. 6. The facts on record show that the complaint came to be dismissed on the date on which it was not fixed. There was no occasion for the complainant and / or his Advocate to attend the matter on 16th March, 2006 when the complaint came to be dismissed. 7. In view of the above, I find that the impugned order is unsustainable. 8. Hence, the following order: (i) The impugned order is set aside. (ii) The Criminal Complaint Case No.10/2002 is restored on the file of Judicial Magistrate First Class 3rd Court, Nagpur. (iii) The learned Magistrate shall decide the complaint according to law. (iv) As the complaint is of 2002, the learned Magistrate is directed to dispose the complaint till 30th November, 2018. (ii) The Criminal Complaint Case No.10/2002 is restored on the file of Judicial Magistrate First Class 3rd Court, Nagpur. (iii) The learned Magistrate shall decide the complaint according to law. (iv) As the complaint is of 2002, the learned Magistrate is directed to dispose the complaint till 30th November, 2018. (v) The complainant and the accused shall appear before the Judicial Magistrate First Class 3rd Court, Nagpur on 23rd July, 2018 at 11 a.m. and abide by further orders in the matter. (vi) The appeal is allowed accordingly. In the circumstances, the parties to bear their own costs. (vii) Office is directed to send back the record and proceedings immediately.