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2018 DIGILAW 756 (BOM)

Vijay v. Jayashri

2018-03-14

V.M.DESHPANDE

body2018
JUDGMENT M. Deshpande, J. (Oral) - In view of the order dated 07.03.2018 (Coram: Rohit B. Deo, J.) this appeal is required to be disposed of at the admission stage. In view of the said order, the appeal is placed before me for final hearing at the stage of admission. 2. Heard Mr. Masurke, learned counsel for the appellant and Mr. Teni, learned counsel for the respondent. Admit. 3. The appeal is filed by the original complainant. He has filed a complaint for an offence punishable under section 138 of the Negotiable Instruments Act against the respondent. As per the complaint, in discharge of her legal liability, the cheque in question was issued which was not honoured by her banker. 4. The complaint was verified and thereafter the learned Judge of the Court below passed the order of issuance of process. The respondent appeared before the learned Magistrate and she was released on bail by the learned Magistrate. The complaint case is of the year 2015. On 29.08.2017, the learned 26th Jt. Civil Judge Junior Division and Judicial Magistrate First Class, Nagpur dismissed the complaint since it was noticed that in spite of order passed below Exh.1 on 21.07.2017 and 30.05.2017, the complainant has not adduced the evidence and is not diligent. 5. Though this Court is not approving the conduct and attitude of the appellant/original complainant in not cooperating with the Court for early disposal of the complaint, in my considered view, one chance needs to be given to the appellant to prove his case in accordance with law. 6. Mr. Masurke, learned counsel for the appellant submits that the appellant will not seek any adjournment on any count and will extend full cooperation to the learned Judge of the Court below. The statement is accepted. 7. Though, the prayer of remand after setting aside the order impugned is vehemently opposed by Mr. Teni, learned counsel for the respondent, he submits that an appropriate order may be passed for early disposal of the complaint. That leads me to pass the following order. ORDER (i) Criminal Appeal No.143/2018 is allowed. (ii) The order passed by 26th Jt. Civil Judge Junior Division and Judicial Magistrate First Class on 29.08.2017 in Summary Criminal Case No.51/2015 dismissing the complaint and acquitting the accused is hereby set aside. That leads me to pass the following order. ORDER (i) Criminal Appeal No.143/2018 is allowed. (ii) The order passed by 26th Jt. Civil Judge Junior Division and Judicial Magistrate First Class on 29.08.2017 in Summary Criminal Case No.51/2015 dismissing the complaint and acquitting the accused is hereby set aside. (iii) Summary Criminal Case No.51/2015 stands restored to the file of Judicial Magistrate First Class, Nagpur subject to deposit of Rs. 1000/by the appellant in the Court of Judicial Magistrate First Class on the day of his appearance before the Court below. On such deposit, the respondent will be entitled to withdraw the said amount. (iv) Both the learned counsel agree to appear before the Court on 28.03.2018. The learned Magistrate is hereby directed to pass an order granting bail in favour of the respondent on her executing P.R. Bond in the sum of Rs. 1,000/with one solvent surety in the like amount. (v) The learned Magistrate shall decide the complaint within six months from 28.03.2018. (vi) Counsel for the appellant assures this Court that he will extend full cooperation to the learned Magistrate for early disposal of the matter. (vii) Registrar (Judicial) is directed to remit the record and proceedings forthwith. Petition Allowed.