45appln755.07.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No.755 of 2007 (M/s. Jejani Udhyog vs. Vinar Ispat Ltd. and Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Coram: A. P. Bhangale, J. Date : 04/05/2011. 1. Heard Mr.S.M.Bhangde, Adv. for the applicant, Mr.V.M.Deshpande, Adv. for respondent nos. 1 to 4 and Mrs.R.A.Deshpande, Additional Public Prosecutor for respondent no.6. 2. By this application filed under Section 482 of the Code of Criminal Procedure, the applicant has prayed for setting aside the order dt.16.2.2007 passed by the learned 3rd Joint Civil Judge (Jr.Dn.) and Judicial Magistrate, First Class and Special Court under Section 138 of the Negotiable Instruments Act, Nagpur in Criminal Case No.366 of 2003 whereby on the ground of absence of complainant the complaint was dismissed. The complainant instructed his Advocate to prefer an application on 20.2.2007 with a prayer to recall the order of dismissal dt. 16.2.2007 on the ground that the dismissal order was not yet signed and further contending that the accused has approached the learned Additional Sessions Judge, 45appln755.07.odt 2 Nagpur and has filed Criminal Revision Application No.407 of 2006 in which record and proceedings were called for from the learned Trial Magistrate's Court. Under these circumstances, the complainant applied to re-call the order below Exh.1, dt. 16.2.2007 passed in Criminal Case No.366 of 2003 in the Court of learned Judicial Magistrate, First Class and Special Judge under Section 138 of the Negotiable Instruments Act at Nagpur. 3. The learned trial Magistrate on 21st February, 2007 refused to recall the order on the ground that the complainant was absent for the last five days and list of unattended matters was sent to the Bar Association and published outside the Court well in advance, but no further steps were taken. On 16.2.2007, therefore, the matter was dismissed. Thus, the applicant prays for restoration of Criminal Complaint No.366 of 2003 to the file of the learned Judicial Magistrate, First Class and Special Court under Negotiable Instruments Act at Nagpur. 4. The learned Advocate, in support of the application, has contended that the complainant was not given sufficient opportunity to appear and prosecute the complaint by the learned trial Magistrate. It is contended that the complainant is a proprietary concern having its Office at new Cotton Market, Nagpur doing business through proprietress Mrs. Neeta Nirmal Jejani in the name and style as 'Jejani Udhyog'. She had lodged complaint against the accused persons complaining of dishonour of cheque issued on behalf of accused in respect of which offence was alleged to have been committed punishable u/s. 138 of the Negotiable Instruments Act. It is submitted that the accused were praying for grant of 45appln755.07.odt 3 adjournment before the learned trial Magistrate and in fact, they had also filed Criminal Revision Application before the learned Additional Sessions Judge against issuance of process in the complaint proceedings. The revision application was registered as Criminal Revision Application No.857 of 2005. In these circumstances, the complainant was under impression that since the record and proceedings from the learned trial Magistrate's Court were called for in the Sessions Court, Nagpur, the complaint may not proceed further as issuance of process itself is challenged before the learned Additional Sessions Judge, Nagpur. It is submitted that the complainant has a good case on merits and she is hopeful of success in the complaint. Under these circumstances, it is submitted that, in the interest of justice, inherent powers be exercised as contemplated u/s. 482 of the Code of Criminal Procedure so as to restore the complaint to the file of the learned Judicial Magistrate, First Class and Special Judge, Nagpur. 5. The learned Counsel for the applicant/complainant has placed reliance upon the ruling reported in 2010 ALL MR (Cri) 741, Daulatrao Yashwantrao Patil .vs. Subhash Babarao Mankar in order to canvass a submission that the complainant deserves an opportunity to prosecute the complaint proceedings. Reliance is also placed on the rulings reported in 2009 ALL MR (Cri) 1090, Pankaj Premji vs. Jayant Paper Mills and Ors. and 2009 ALL MR (Cri) 1657 India Fintrade Ltd. vs. Cherry Fashions Ltd. and Ors., wherein it is held that if absence of complainant is duly explained, opportunity deserves to be granted in favour of the complainant to prosecute the complainant as, under such circumstances, drastic recourse to axing down complaint would 45appln755.07.odt 4 not be a proper exercise of the power and discretion envisaged in Section 256 of the Code of Criminal Procedure. Thus, in the case of Daulatrao Yashwantrao Patil (cited supra), this Court had remitted the matter back to the trial Magistrate for disposal according to law. 6. The learned Counsel for the applicant also made reference to the case of India Fintrade Ltd. (cited supra), wherein this Court had, in the facts and circumstances of that case, held that under Section 256 of the Code of Criminal Procedure, the learned Magistrate is required to exercise discretion after considering the conduct of the complainant. 7. Section 256 of the Code of Criminal Procedure reads thus : 256 (1) : “ If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, if the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day : Provided that where the complainant is represented by a pleader or by the Officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is 45appln755.07.odt 5 not necessary, the Magistrate may dispense with his attendance and proceed with the case. “ ( 2) ….......................... 8. The provision imply a discretion to be exercised by the trial Magistrate concerned either to acquit the accused or to adjourn the case or to dispense with attendance of the complainant so as to proceed with the case. Discretion has to be exercised in fair and judicious manner as the Court exists for dispensation of justice within the framework of statutory provisions governing a particular case. 9. The learned Counsel for the respondents/accused while opposing this application has submitted that dismissal of the complaint must be construed as an acquittal and therefore, remedy for complainant is to file an appeal against the order of acquittal. The learned Counsel for the respondents relied upon the ruling in the case of Om Gayatri and Co. and Ors. vs. State of Maharashtra, 2006 Cri.L.J. 601 in order to submit that when complaint is dismissed in view of Section 256 of the Code of Criminal Procedure, it entails acquittal of the accused and the law provides remedy by way of appeal against the order of acquittal. Once a remedy by way of appeal is available to the complainant u/s. 378 (4) 45appln755.07.odt 6 of the Code of Criminal Procedure, the Court would not exercise inherent power u/s. 482 of the Code of Criminal Procedure to interfere with the impugned order. Reference is also made to canvass same proposition with reference to the ruling in the case of Kalpana Tyagi .vs. Sneh Lata Sharma reported in 2003 Cri.L.J.3395 that dismissal of complaint u/s. 256 results into acquittal of the accused against which appeal can be filed. Therefore, powers u/s. 482 of the Code of Criminal Procedure ought not to be exercised. 10. To meet these submissions; in reply the learned Counsel for the applicant has contended that merely because alternate remedy was available to the complainant to prefer appeal, as submitted on behalf of the accused; in the facts and circumstances of the case, the complainant ought not to be non-suited merely on technical plea of availability of alternate remedy. The learned Counsel for the applicant relied upon the ruling in the case of Procter and Gamble India Ltd. vs. Municipal Corporation of Greater Bombay and Ors. reported in 2004 (1) Mh.L.J. 407. This Court appears to have observed thus : 45appln755.07.odt 7 “ As regards the contention regarding the alternative remedy, it is well settled that once the petitions are admitted for final hearing, without any reservation of right in favour of the respondents to raise plea of non-maintainability of the petitions on account of any such alternative remedy being available to the petitioners, the respondents cannot be allowed to non-suit the petitioners, at the final stage, merely on such a technical plea and more particularly when the petitioners have a good case on merits. Applying the same rule to the case in hand, the objection relating to the availability of alternative remedy is rejected. “ 11. Reliance is also placed upon the ruling in the case of Suteja Suresh Mathkar .vs. Saroj Sadan Co-operative Housing Society Ltd. and Ors. reported in 2005 (1) Mh.L.J. 661. This Court has laid down that once the Writ Petition is admitted the petitioner cannot be non-suited on the technical ground of availability of alternative remedy. 12. Another ruling is cited in the case of Shrirang Ramratan Chandak and Ors. vs. Union of India and Ors reported in 2006 (4) Mh.L.J. 571. The Division Bench of this Court has held that the contention about availability of alternative 45appln755.07.odt 8 remedy does not deserve to be allowed particularly when the petition was pending for a long time (17 years and 8 months) in that case. 13. Coming back to the facts and circumstances of the present case, in the light of the rulings cited, it is not in dispute that the accused against whom the process was issued by the learned trial Magistrate; preferred to challenge the order as to issuance of process by means of Criminal Revision Application in the Sessions Court at Nagpur. It is contended on behalf of the applicant that Criminal Revision Application No.407 of 2006 was preferred by the accused to challenge the order of issuance of process with a prayer to call for the record of the Criminal Case No.366 of 2003 (present complaint case) and grant of interim relief. Pending disposal of Revision, the learned Additional Sessions Judge was pleased to call for the record and proceedings. Criminal Revision Application No.407 of 2006 was admitted and notice was issued to the complainant by order dt.3.4.2006 passed by learned 8th Ad-hoc Additional Sessions Judge. Under these circumstances, when accused had challenged issuance of process in the complaint case and obtained interim order in the Criminal Revision Application No.407 of 2006 preferred by them, the learned trial Magistrate 45appln755.07.odt 9 could not have proceeded further with the complaint proceedings without awaiting outcome of the said Criminal Revision Application. In these facts and circumstances, the learned trial Magistrate could have adjourned the complaint case instead of dismissing the same because what is necessary is exercise of judicious and fair discretion if there are circumstances indicating that presence of complainant in such proceedings is quite unnecessary. The trial Magistrate can very well adjourn the case awaiting outcome of the proceedings pending in the higher Court when issuance of process is challenged in the case instead of resorting to drastic stage of dismissal of complaint on the ground of absence of the complainant. For these reasons, I think that the trial Magistrate was not justified to dismiss the complaint instead of deciding the same on merits, as discretion in such cases has to be fair and judicious. After having considered the submissions advanced at the bar and the rulings cited in the facts and circumstances of the present case, I am of the opinion that absence of the complainant is duly explained and therefore, the complainant deserves an opportunity to prosecute the complaint on merits. Merely because the alternate remedy was available for the complainant, she cannot be deprived of an opportunity of hearing on merits merely because of a technical ground. 45appln755.07.odt 10 14. For the above reason, therefore, the impugned order dt. 16.2.2007 dismissing the Criminal Complaint No.366 of 2003 is set aside. The Criminal Complaint No.366 of 2003 shall stand restored to the file of learned trial Magistrate and Special Court u/s. 138 of the Negotiable Instruments Act at Nagpur. Parties shall appear before the learned trial Magistrate on 13.6.2010 at 11.00 A.M. The learned trial Magistrate shall proceed with the complaint proceedings on merits and in accordance with law. JUDGE jais