1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3603 OF 2009 Prakash Manmatappa Dadge ..APPLICANT -VERSUS- Pralhad Ramchandra Shinde ..RESPONDENT ..... Mr.V.V. Tamke, advocate for applicant. Mr.M.D. Gitte, advocate for respondent. ..... (CORAM : SHRIHARI P. DAVARE,J.) DATED : 26th July, 2010. PER COURT : 1. Heard Mr.V.V. Tamke, learned counsel for applicant as well as Mr.M.D. Gitte, learned counsel for respondent. 2. This is an application preferred by applicant (original complainant), seeking leave to file appeal challenging judgment and order of acquittal dated 31st July, 2009 passed by learned Chief Judicial Magistrate, Latur acquitting respondent (original accused) for the offence punishable under Section 138 of the Negotiable Instruments Act, 1981 (Hereinafter referred to as, "the Act"). 3. It is the contention of applicant that he is the original 2 complainant and respondent is the original accused in Complaint S.T.C.C. No.4259/2006 filed by applicant against respondent under Section 138 of the Act for dishonour of cheque of Rs.1,05,000/-, in the Court of learned Chief Judicial Magistrate, Latur. It is also the contention of applicant that learned Chief Judicial Magistrate, Latur dismissed the said complaint in default and acquitted accused in S.T.C.C. No.4259/2006 on 31st July, 2009 for the offence punishable under Section 138 of the Act. 4. It is further contention of applicant that applicant has appointed one Mr.Shivkumar Dighe as his Advocate to work out the matter, who had filed the said complaint under S.T.C.C. No. 4259/2006 in the name of his Junior Advocate namely, Shri.Santosh Dapke. However, Mr.Shivkumar Dighe was selected for the post of Additional District Judge at Bombay, and therefore, he could not work out the matter, nor his junior advocate could work out the matter, and accordingly, they were absent for two dates i.e. on 9th July, 2009 and 31st July, 2009. They also did not inform the date of matter to applicant, and therefore, he also could not remain present in Court. In the result, learned Chief Judicial Magistrate, Latur was pleased to pass an order of dismissal in default and acquitted the accused for the offence punishable under Section 138 of the Act 31st July, 2009. Being aggrieved and 3 dissatisfied by the said order, applicant (original complainant) has preferred present application seeking leave to file appeal against the said order dated 31st July, 2009. 5. Learned counsel for applicant relied upon the observations made in the case of "Mohammad Ilyas Ahmed V/s Abdul Subhan" reported in "2001(3) All M.R. (Journal) 38", wherein following observations are made : "The Court has discretionary power to enquire into the facts and by any valid excusable reason the petitioner's absence is explained on equitable considerations, relief under Section 482 of Cr.P.C. can be granted. It is evident from the facts that the complainant was absent, it is explained that the Complainant had gone abroad, he had instructed his counsel who also appears to be diligent in conducting the prosecution, `although he was not present at the time when the case was called. But however, immediately after the dismissal order is passed counsel made his appearance and made request to the Court. The prosecution of a private complaint for an offence under Section 138 of Negotiable Instruments Act, largely differs from the prosecution of a private complaint in respect of other IPC offences. For an offence under Section 138 of Negotiable Instruments Act, there is no remedy available for 4 the complainant to file a second complaint when dismissed for default in view of the limitations prescribed." 6. Learned counsel for respondent (original accused) opposed present application vehemently and submitted that the Roznama of S.T.C.C. No.4259/2006 discloses that complainant's advocate was absent on 09.07.2009 and 31.07.2009 and hence, respondent made application requesting to acquit respondent on 09.07.2009 under Section 138 of the Act, and consequently, since the complainant and his Advocate remained absent on 31st July, 2009, the order came to be passed on the said application and respondent accused acquitted under Section 138 of the Act, dismissing the said complaint and it is submitted by learned counsel for respondent that there is no illegality in the said order and no leave is required to be granted to applicant to file appeal against the said order. 7. Considering the rival submissions advanced by learned counsel for the respective parties, it appears from the Roznama of S.T.C.C. No.4259/2006 that accused appeared in the matter and submitted bail application on 7th April, 2009 and thereafter, the said matter was posted on 9th July, 2009. Roznama further discloses that on 9th July, 2009 complainant and his Advocate were absent and accused preferred application requesting to acquit him under the provisions of Section 256(1) of Criminal Procedure Code, since the complainant and his Advocate were absent and accordingly, the said matter was posted on 31st July, 2009. On 31st, July, 2009 also, complainant and his Advocate remained absent and accused was present and order came to be passed below Exhibit-1 and accused came to be acquitted under 5 Section 256 of Code or Criminal Procedure. On the face of the said position, learned counsel for applicant submits that he had entrusted the matter to one Shri.Shivkumar Dighe Advocate for filing S.T.C.C. No.4259/2006 and also to work out the same. However, learned counsel for applicant submitted that said Shri.Shivkumar Dighe, Advocate was selected for the post of Additional District Judge, Bombay, and therefore, he could not work out the matter, nor his junior could work out the matter nor they informed any dates to the applicant (original complainant), and hence, the present applicant could not remain present before the Court on two dates i.e. 09.07.2009 and 31.07.2009, and consequently, the complaint came to be dismissed and accused came to be acquitted for the offence under Section 138 of the Act. 8. In the light of the aforesaid facts, it is amply clear that respondent herein came to be acquitted under Section 256 of Criminal Procedure Code on technicality and not on merits. The principles of natural justice require that opportunity be given to applicant (original complainant) to prosecute the complaint filed by him under S.T.C.C. No.4259/2006 on its own merits. Hence, present application deserves to be allowed. Accordingly, present application is allowed and leave is granted to the applicant to file appeal against the order of acquittal dated 31st July, 2009 passed by learned Chief Judicial Magistrate, Latur in S.T.C.C. No. 4259/2006 as prayed for. 9. By consent of learned counsel for the parties, this application itself is treated as appeal and same is admitted and since the evidence has not been adduced by the parties, the paper book is dispensed with and appeal itself is taken up for final hearing. 6 10. Relying upon the observations made in the case of Mohammad Ilyas Ahmed (cited supra), since the applicant has explained valid excusable reason for his absence and his Advocate Shri.Shivkumar Dighe, who was selected as Additional District Judge at the relevant time and since the complaint filed under Section 138 of the Act, which largely differs from the prosecution of a private complaint in respect of other I.P.C. offences and since there is no remedy available for the complainant to file a second complaint against dismissal in default, in view of the limitations prescribed, an opportunity deserves to be granted to applicant- complainant to prosecute the said complaint on merits, which shall subserve the interest of justice. Therefore, impugned order dated 31st July, 2009 deserves to be quashed and set aside with directions to the parties to appear before the concerned Court on specified date with further directions to the concerned Court to conduct the hearing of the said case expeditiously. 11. In the result, present appeal is allowed and impugned order dated 31st July, 2009 passed by learned Chief Judicial Magistrate, Latur in S.T.C.C. No.4259/2006 acquitting respondent (accused) for the offence under Section 138 of the Negotiable Instruments Act, 1981 invoking the provision of Section 256 of Criminal Procedure Code stands quashed and set aside and S.T.C.C. No.4259/2006 stands restored. The parties are directed to remain present before learned Chief Judicial Magistrate, Latur on 1st September, 2010 and learned Judge is directed to conduct the matter expeditiously. (SHRIHARI P. DAVARE) JUDGE gas/cri3603.09