CRIMINAL APPLICATION (APPA) NO. 40 OF 2019

29th July 2019

Petitioner Counsel: Shri R.D. Hajare
Respondent Counsel: Shri A.P. Kalmegh
Act Name: Negotiable Instruments Act, 1881 Code of Criminal Procedure, 1973

Section :
Section 138 Negotiable Instruments Act, 1881 Section 256(1) Code of Criminal Procedure, 1973

Cases Cited :

JUDGEMENT

This appeal questions the order dated 02-11-2018 rendered by the Judicial Magistrate First Class, Amravati in 5006/2013, whereby the complaint instituted under Section 138 of the Negotiable Instruments Act, 1881 is dismissed under Section 256(1) of the Criminal Procedure Code.

2. I have heard Shri R.D. Hajare, learned Counsel for the appellant and Shri A.P. Kalmegh, learned Counsel for the respondent.

3. With consent, this appeal is finally heard.

4. The order-sheet placed on record reveals that the complaint is dismissed for singular default.

5. The complaint came to be dismissed since 02-11-2018. The complainant and his Counsel were absent. It is true that the complainant and the counsel were absent on the earlier date i.e. 06-10-2018. However, the learned Presiding Officer was on leave on that date.

6. Shri R.D. Hajare, learned Counsel invites my attention to the decision of the Apex Court in Mohd. Azeem vs. A. Venkatesh and Another, (2002) 7 SCC 726, to buttress the submission that the dismissal of the complaint for a singular default would be unjust.

7. The submission of Shri R.D. Hajare is well merited. It was not proper for the learned Magistrate to dismiss the complaint for the singular default. The order impugned is unsustainable and is set aside.

8. However, it is noticed that the summary criminal Case is of the year 2013. In this view of the matter, the learned Magistrate is expected to decide the summary case expeditiously and in any event within four months.

9. The appellant shall cooperate in expeditious disposal of the trial. The appellant shall attend every date of hearing either personally or through counsel. If the appellant or his Counsel is absent, no further indulgence shall be shown. The learned Magistrate would be well justified in dismissing the complaint in the backdrop of default already committed, albeit singular default, in attending the proceedings. If the complaint is again dismissed for absence of the complainant, no indulgence shall be shown unless extremely exceptional and compelling case is made out.

10. The parties shall appear before the learned Magistrate on 13-8-2019. The complainant is directed to adduce evidence on the next date or on the next date as per the convenience and daily board of the learned Magistrate.

11. The appeal is allowed and disposed of in the aforestated terms.