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2018 DIGILAW 329 (BOM)

Sheikh Chhotu v. Ahemad Khan

2018-02-02

ROHIT B.DEO

body2018
JUDGMENT Rohit B. Deo, J. (Oral) - Challenge is to the order dated 06.01.2014 rendered by the Judicial Magistrate First Class, Court 5, Akola in Summary Criminal Case 312/2011, by and under which, the complaint instituted under section 138 of the Negotiable Instruments Act, 1881 (''Act'' for short) is dismissed under section 256 of the Criminal Procedure Code, 1973. 2. Heard Shri A.J. Mirza, the learned counsel for the appellant and Shri V.B. Bhise, the learned counsel for the respondent. 3. The learned counsel for the complainant invites my attention to the order-sheet. The order-sheet reveals that the dispute was referred for mediation and report awaited. The order-sheet dated 15.11.2013 records that the matter is fixed on 10.12.2013 for the report of the mediator. 4. Perusal of the order impugned would reveal that the report was received by the learned Magistrate after 15.11.2013 and before 10.12.2013. It is in view of the receipt of the report that on 10.12.2013 the Summary Criminal Case was fixed on 02.01.2014 for dismissal. This order was presumably made since neither the counsel for the complainant nor the counsel for the accused attended the court. 5. Again, on 02.01.2014 neither the counsel for the complainant nor the counsel for the accused attended the court and the complaint was fixed on 06.01.2014 for dismissal, and is accordingly dismissed by order dated 06.01.2014. 6. The learned counsel for the appellant would submit that during the pendency of the proceedings before the mediator the complainant fell ill and was receiving treatment of Dr. Imran Ahemad who advised him bed rest. The medical papers are filed along with the memo of appeal. The complainant, due to his illness could not contact the lawyer, is the submission. The Advocate presumably did not attend the court on the two relevant dates under the impression that the report of the mediator is awaited. 7. Shri Bhise, the learned counsel for the respondent opposes the submissions on behalf of the complainant. He invites my attention to the fact that even the mediation failed since the accused parties chose not to appear before the learned mediator. 8. Be that as it may, on perusal of the order-sheet and the medical papers, I am of the opinion that it would be appropriate if the order impugned is set aside and the criminal complaint decided on merits. 9. 8. Be that as it may, on perusal of the order-sheet and the medical papers, I am of the opinion that it would be appropriate if the order impugned is set aside and the criminal complaint decided on merits. 9. In the result, the order impugned is set aside. 10. The learned Magistrate is requested to finally decide the complaint within six months of the receipt of record and proceedings. 11. The counsel for the complainant states that no adjournment shall be sought on behalf of the complainant. Needless to say that the learned Magistrate would be expected not to grant any adjournment either the complainant or the accused, unless exceptional grounds are made out. 12. On receipt of the record and proceedings the learned Magistrate shall issue fresh notice to the parties. 13. The appeal is partly allowed in the above terms.