2013 ALL MR (Cri) 3424
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
P.D. KODE, J.
Kusumgar Finance & Marketing Co. Vs. State Of Maharashtra
Criminal Application (Apl) No. 409 of 2013
10th July, 2013
Petitioner Counsel: Shri SYED OWAIS AHMED
Respondent Counsel: Shri N.S. RAO
Criminal P.C. (1973), S.482 - Negotiable Instruments Act (1881) S.138 - Quashing of dismissal order - Case u/s.138 of NI Act - Dismissal of applicant's case for his failure to remain present before court - Reason for non-appearance stated that applicant's advocate noted wrong date - Submission that looking to high stakes involved in the case it is unlikely that any sane person would run risk of not attending case - Held, case made out for exercising power u/s.482 - Order of dismissal quashed and set aside. (Paras 7, 8)
3. Application for exercising powers under Section 482 of the Code of Criminal Procedure for quashing and setting aside the order dated 28.06.2013 dismissing in default Criminal Case No.23394/2011 on the count of applicant having not remained present for the purposes of verification.
4. The applicant has filed the said case for commission of the offence under Section 138 of the Negotiable Instrument Act, 1881 against two accused mentioned in the said case. It was filed on the allegation that accused no.1 therein was authorized signatory of accused no. 2 firm and cheque in sum of Rs.30,00,000/- (Rs. Thirty Lacs) was given by them to the complainant in view of franchisee taken but the same had bounced and the accused thereafter have failed to pay the amount within statutory period in spite of service of demand notice upon them.
5. Mr. Syed Owais Ahmed, learned counsel for the applicant submitted that the applicant failed to appear before the said Court in view of wrong date informed to him by his Advocate, in view of advocate having noted erroneous date, when an application for exemption made by him was granted by the Court on the previous occasion in the said case. It is submitted that considering high stakes i.e. the quantum of money involved in the said case, it is unlikely that any sane person would run a risk of not attending the case inviting the dismissal of his case filed for recovery of such an amount.
6. As an alternate submission, it is submitted that the case could have been dismissed for default for non-appearance of the complainant only when the same was fixed for appearance of the accused and/or any date thereafter fixed for hearing thereafter. It was submitted that the case being dismissed even prior to issuing of notice to the complainant, an opportunity deserves to be given to the applicant for testing merits of his contention before the Court in accordance with the law. It was urged that no prejudice would be caused to the accused by giving such a chance as no right has accrued to them due to such dismissal. It is submitted that hence the applicant is praying before this Court for exercising the powers under Section 482 of the Code of Criminal Procedure for quashing and setting aside the said order for serving the ends of justice.
7. The learned APP appearing on behalf of the respondent has also not pointed out any specific circumstance for not acceding with the request made. There appears submission canvassed by the learned counsel for the applicant that any sane person will allow proceeding involving such amount to lapse negligently. At any rate presently there is nothing before the Court to come to the conclusion that the failure on part of the applicant to remain present before the Court had occurred for any other reason than submitted that himself being not informed about the fixing of the matter.
8. In the premises aforesaid and considering the real purpose for which the powers under Section 482 of Cr.P.C. are to be exercised, it appears that the case is made out for exercising such powers. However, considering the conduct of the applicant, certain cost deserves to be saddled upon him.
9. Resultantly Criminal Application No.409 of 2013 is allowed. The order dated 28.06.2013 passed by 20th Jt. Civil Judge, Junior Division, Nagpur dismissing Criminal Case No. 23394/2011 for default, is hereby quashed and set aside subject to the applicant depositing Rs.5000/- with the High Court Legal Services, Sub Committee, Nagpur.