Research › Search › Judgment

Bombay High Court · body

2023 DIGILAW 1444 (BOM)

Abhijit Ram Fadnavis v. Rajendra Ramji Kharwade

2023-07-05

U.J.PHALKE

body2023
JUDGMENT/ORDER 1. Heard learned counsels for the parties. 2. This appeal is filed under Sec. 378 (4) of the Code of Criminal Procedure, 1973 against the impugned order passed in Summary Criminal Case No. 14103/2018 by which the complaint is dismissed under Sec. 256 of the Code of Criminal Procedure for absence of complaint and the accused is acquitted under Sec. 138 of Negotiable Instruments Act. 3. By this appeal, the appellant is also seeking leave to file an appeal against the order of acquittal of respondent/ original accused passed by the learned 17th Joint Civil Judge, Senior Division and Additional Chief Judicial Magistrate (Special Court-138 N.I. Act), Nagpur in Summary Criminal Case (SCC) No. 14103/2018 dtd. 5/8/2022. 4. As per the contention of the appellant, the appellant and respondent Nos. 1 and 2 were acquainted with each other through one Parag Vasantrao Khati. The appellant was in search of a Government Job and this fact was known to the accused i.e. respondents. The respondents promised the appellant that, they will help the appellant in seeking Government Job and demanded Rs.5, 00, 000.00 from the appellant. On 04/03/2014, the appellant has deposited Rs.3, 00, 000.00 in the bank account of respondents bearing No. 7313 in Bank of Baroda. Again on 7/3/14, the appellant has deposited Rs.1, 00, 000.00, and on 11/3/2014 another Rs.1, 00, 000.00 was deposited. Thereafter, the brother-in-law of the respondent No.1 has sent a forged appointment letter to the appellant. The appellant contacted the concerned department and it revealed to him that, the forged appointment letter is issued to him. He lodged the report at Police Station Pratap Nagar, Nagpur. The respondents were called by the Police for inquiry and the respondents admitted that they will repay the amount of Rs.6, 70, 000.00 to the appellant. In discharge to the aforesaid liability, the respondent Nos. 1 and 2 have issued three cheques drawn on the Bank of Baroda Nagpur Branch of Rs.2, 50, 000.00, 2, 50, 000/- and Rs.1, 70, 000.00 receptively vide cheque nos.000169 dtd. 30/11/2017, 000170 dtd. 30/01/2018 and 000171 dtd. 30/03/2018. The appellant presented the above cheques in his account but all the cheques are dishonoured with an endorsement of "funds insufficient". Thereafter, the appellant has issued the notice on 19/05/2018, the said notice was received by the respondent Nos. 30/11/2017, 000170 dtd. 30/01/2018 and 000171 dtd. 30/03/2018. The appellant presented the above cheques in his account but all the cheques are dishonoured with an endorsement of "funds insufficient". Thereafter, the appellant has issued the notice on 19/05/2018, the said notice was received by the respondent Nos. 1 and 2 on 04/06/2018 but the respondents failed to repay the amount, and therefore, the appellant has filed a criminal complaint under Sec. 138 of Negotiable Instruments Act. 5. The learned trial Court has taken cognizance of the said complaint and issued the process against the present respondents, the present respondents appeared in the case. Subsequently, the appellant has filed the affidavit of examination-in-chief. However, due to the Covid Pandemic situation, he could not remain present and therefore, the Court has dismissed the complaint by passing order on 05/08/2022, observing that the appellant is continuously absent, which shows that he is not interested and by invoking powers under Sec. 256 Code of Criminal Procedure, the complaint was dismissed and the respondents are acquitted. 6. As per the contention of the appellant that due to Covid-Pandemic situation, he could not attain the proceedings. He further submitted that his counsel did not inform him about the date. He contended that on 16/04/2020 itself, he has filed an affidavit on examinationin-chief. The Covid restrictions were imposed in March 2020 itself and therefore, he could not approach either to his counsel or the Court. His counsel did not take any effort to inform the appellant the dates and to attend the matter, due to which he remained absent. The absence was not intentional one. The appellant has already lost the amount of Rs.5, 00, 000.00, though he was not in service under the acceptance of getting Job. He neither got the job, but he lost his amount, considering the same opportunity be granted to the appellant to proceed with case. 7. Respondents raised strong objection for restoration of the case at its original stage, on the ground that after sufficient opportunity, the appellant remained absent, and therefore, the complaint is dismissed. He submitted Rojnama to show that sufficient opportunity is already granted and now, the appellant has filed this appeal to restore the complaint to extract money from the respondents and pays for the dismissal of the appeal. 8. Heard learned counsel Ms Asavari Kale holding for Mr Ranjan N. Deshpande learned counsel for the appellant. He submitted Rojnama to show that sufficient opportunity is already granted and now, the appellant has filed this appeal to restore the complaint to extract money from the respondents and pays for the dismissal of the appeal. 8. Heard learned counsel Ms Asavari Kale holding for Mr Ranjan N. Deshpande learned counsel for the appellant. She reiterated the contention that the appellant has already been filed the affidavit, during the Covid Pandemic situation. As there were complete restrictions on the movements of the people, therefore, the appellant could not approach to the counsel or the Court. The counsel has not intimated the dates after restrictions were lifted and therefore, the appellant could not gather the information regarding the fixation of the date in the Court. So there is a reasonable, satisfactory ground for his absence. The learned trial Court had not taken into consideration that, even during Pandemic Period, the appellant has attended the proceedings and filed an affidavit of examination-in-chief. Therefore, the opportunity is to be granted to the appellant to proceed with the Criminal Complaint. 9. Per contra, learned counsel Mr Nikhil D. Dawda for respondent No.1 submitted that the Roznama shows that several opportunities are granted to the appellant to proceed with the case. However, it was the appellant, who was negligent, therefore, the complaint was dismissed. There is negligence on the part of the appellant and hence appeal is devoid of merits and liable to be dismissed. 10. Having heard both the sides and on perusal of the Roznama, it reveals that from 17/09/2021 till 05/08/2022 the appellant was absent, and therefore, the learned trial Court has invoked the powers under Sec. 256 and dismissed the complaint, and the accused are acquitted under Sec. 138 of the Negotiable Instruments Act. Out of these dates, on 17/09/2021, and 26/10/2021 the advocate was present, and he filed an application for adjournment. On 20/01/2022, the Presiding Officer was on leave and therefore, the matter was adjourned. While considering the absence of the present appellant, the learned trial Court had not taken into consideration that the matter was listed for evidence on 9/11/ 21 and on 16/4/2020, the appellant filed an evidence by filing an affidavit of examination-in-chief. 11. On 20/01/2022, the Presiding Officer was on leave and therefore, the matter was adjourned. While considering the absence of the present appellant, the learned trial Court had not taken into consideration that the matter was listed for evidence on 9/11/ 21 and on 16/4/2020, the appellant filed an evidence by filing an affidavit of examination-in-chief. 11. Admittedly, at the relevant time, there were restrictions on the movement of the public at large, due to the Covid Pandemic situation, but the appellant has filed an affidavit by attending the Court even in a Covid Pandemic situation. Subsequently, due to the Covid Pandemic situation, he could not attend the Court. He has specifically stated that the counsel has not informed him the dates and therefore, he could not attend the Court. Admittedly, the matter pertains to dishonour of cheque issued by the respondent/accused in favour of the appellant. The proceeding under Sec. 138 of the Negotiable Instruments Act was initiated by the appellant as the amount was obtained by the respondents from the appellant on the pretext of providing employment. The transaction which took place between the appellant and the respondents shows that false promise was given by the respondents to the appellant and obtained the amount of Rs.5, 00, 000.00 when the appellant was not having any Government Job. It further reveals from the facts of the case that the forged appointment letter was issued to the appellant by the respondents therefore, the appellant filed a complaint at the Police Station. The respondents settled the matter before the Police and issued the cheques to the present appellant. The said cheques were deposited by the appellant which was dishonoured and therefore, the complaint is filed under Sec. 138 Negotiable Instruments Act. Thus, the matter pertains to dishonour of cheques under Sec. 138 of the Negotiable Instruments Act. 12. Moreover, the bonafides of the appellant can be ascertained from the fact that he has already adduced the evidence by submitting the affidavit by way of examinationin-chief, during the Covid Pandemic situation before the learned Magistrate. The document i.e. Roznama shows that the matter was pending for the cross-examination of the appellant but however, the appellant could not remain present for one or the other reason. 13. Considering the attending circumstances on record, it would be just and proper to grant a reasonable opportunity to the appellant to litigate his cause on merits. The document i.e. Roznama shows that the matter was pending for the cross-examination of the appellant but however, the appellant could not remain present for one or the other reason. 13. Considering the attending circumstances on record, it would be just and proper to grant a reasonable opportunity to the appellant to litigate his cause on merits. Therefore, leave to prefer the appeal is granted. 14. Moreover, the Magistrate has acquitted the accused under Sec. 256 of the Code of Criminal Procedure because he did not find any reason to adjourn the hearing of the case to some other date. However, considering the reasons mentioned by the appellant for his absence that he was not intimated by his counsel is to be taken into consideration and opportunity is to be granted to the appellant to litigate his cause on merits. In the result, present appeal deserves to be allowed. Accordingly, I proceed to pass following order: a) Criminal Appeal is allowed. b) The impugned order passed by the learned 17th Joint Civil Judge, Senior Division and Additional Chief Judicial Magistrate (Special Court-138 N.I. Act), Nagpur in Summary Criminal Case (SCC) No. 14103/2018, dtd. 5/8/2022 dismissing the said complaint in default under Sec. 256 of the Code of Criminal Procedure and consequently acquitting the accused for the offence punishable under Sec. 138 of the Negotiable Instruments Act stands quashed and set aside. c) Summary Criminal Case No.14103/18 stands restored to the file at its original stage and the matter is remanded back to the learned trial Court to decide the same afresh, on its own merits. d) The parties are directed remain present before the learned trial Court on 15/07/2023. e) The appellant shall proceed with the matter without seeking any adjournment and the learned trial Court shall decide the criminal case expeditiously, subject to payment of costs of Rs.5, 000.00 by the appellant to respondents on or before 10/07/2023 and the present appeal stands disposed of accordingly.</ WXY>