Criminal Appeal No.57 of 2010

8th December, 2010

Petitioner Counsel: Mr. D. L. SURYAWANSHI,Mr. P. K. CHAVARE
Respondent Counsel: Mr. T. S. LODHE

JUDGMENT

JUDGMENT :- This appeal is filed against the order dated 13th August, 2009, by the learned Judicial Magistrate, First Class, Sangamner, in Summary Case No.534 of 2008 dismissing the complaint and acquitting the respondent No.1/accused.

2. The Criminal Case was filed by the appellant under Section 138 of the Negotiable Instruments Act alleging that a cheque issued by the respondent No.1/accused for repayment of the loan got dishonoured and thereby he was liable for conviction under Section 138 of the Negotiable Instruments Act.

3. It is common ground that on 3rd August, 2009, the plea of the respondent No.1/accused was recorded and the appellant/complainant got two opportunities to lead his evidence. On first opportunity, the appellant/complainant sought an adjournment and the Court granted it saying that on next occasion the appellant should come prepared. On 13th August, 2009, when it was the third opportunity given to the appellant/complainant, the appellant/complainant made an application to the Court seeking non-bailable-warrant against the respondent No.1/accused saying that he was absent on that day. However, the Court found the respondent No.1/accused present in the Court. So, the learned Magistrate refused to issue non-bailable-warrant against the respondent No.1/accused. The learned Magistrate then passed the impugned order saying that despite of giving opportunities, the appellant/complainant had failed to lead evidence.

4. As against this, the appellant/complainant has now, in the appeal-memo, taken a plea that on that day, the appellant/complainant was present and an affidavit in lieu of his examination-in-chief was also ready and yet the impugned order was passed and so it deserves to be set aside. This plea of the complainant/appellant appears to be an afterthought. It also seems that the complainant/appellant is lying to the Court. Had the complainant/appellant or his Advocate been present in the Court when the impugned order was passed, he could have brought to the notice of the Court that not only the complainant/appellant was present in the Court, but his affidavit of evidence was also ready to be filed. Had appellant or his Advocate been present before the Court on that day, the order would not have been passed in this manner. So, the plea, which is now taken by the appellant that he was present and that he was even ready with an affidavit of evidence, thus appears to be a false excuse. The appellant has thus tried to mis-lead the Court. The appeal should therefore fail. The appeal stands dismissed.

Appeal dismissed.