2014 ALL MR (Cri) 1698
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
T.V. NALAWADE, J.
Vitthal S/O. Tukaram Marwale Vs. Dhiraj S/O. Govindrao Bhosale & Anr.
Criminal Appeal No.284 of 2013
21st August, 2013
Petitioner Counsel: Mr. MAHESH S. TAUR
Respondent Counsel: Mr. P.G. GUNALE, Mr. S.B. PULKUNDWAR
Negotiable Instruments Act (1881), S.138 - Dishonour of cheque - Dismissal of complaint on ground that complainant and his Advocate did not remain present - Record of proceeding however showing that evidence of complainant-side was complete - Accused did not turn up since the matter was fixed for his statement u/s.313 Cr.P.C. - Even a non-bailable warrant was issued against accused - Complainant and his advocate remained absent only when the matter was kept for further steps - Held, if such tactics are allowed to be played, every accused will play such tactic and complainant will never get justice - As such, impugned order of dismissal needs to be set aside - Matter is to be remanded back to Court below. (Paras 2, 3)
3. The private complaint was filed under Section 138 of the Negotiable Instruments Act. The evidence was closed by the complainant-side on 2nd July, 2011 and the matter was kept for recording statement of accused under Section 313 of Cr.P.C. After that day, accused did not turn up. The complainant applied for issuing non-bailable-warrant on 10th August, 2011, and accordingly non-bailable-warrant came to be issued. On 12th October, 2011, report in respect of non-bailable-warrant was received and the police informed that the non-bailable-warrant could not be executed. It appears that, after that day the matter was kept for taking further steps on 13th January, 2012, 13th February, 2012 and 13th March, 2012. It appears that the complainant and his Advocate did not remain present, and ultimately on 14th May, 2012, the complaint came to be dismissed. Roznama dated 14th May, 2012 contains relevant portion of order of dismissal of complaint by the Magistrate.
4. Learned counsel for the accused supported the order of the learned Magistrate by submitting that for so many occasions the complainant and his Advocate did not turn up and did not take proper steps, and so, there is no need to interfere in the order made by the Magistrate. This proposition is not at all acceptable. If such tactics are allowed to be played, every accused will play such tactic and the complainant will never get justice. In view of the aforesaid circumstances, this Court holds that the order made by the learned Magistrate needs to be set aside and the matter needs to be remanded back to the Court of Judicial Magistrate.
1] The appeal is allowed.
2] The order made by the Judicial Magistrate, First Class, Ahmedpur, in S.T.C. No. 58 of 2009 of dismissal of complaint stands set aside.
3] S.T.C. No. 58 of 2009 stands restored to its original number in the same Court.
4] The parties are to appear before the Judicial Magistrate, First Class, Ahmedpur on 10th September, 2013.