1 Cr. Appln. No.3203/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Criminal Application No.3203 Of 2010 Dhule Shahar Kirana va Bhusar Vyapari Nagari Sahakari Patsanstha Maryadit Dhule, through Suresh s/o Sahebrao Jadhav, Age 31 years, Occupation : Service, R/o Dhule. .. Applicant. Versus Manju W/o Narendra Mantri, Age Major, Occupation: Business, R/o 201, Anubandha Society, Bhavsar Colony, Jamnagari Road, District Dhule. .. Respondent. -------- Shri. N.N. Desale, Advocate, for applicant. Shri. S.V. Adwant, Advocate, for respondent. -------- CORAM: SHRIHARI P DAVARE, J. DATE: 15th JUNE 2011 ORAL JUDGMENT: 1) Heard Mr. Desale, learned Advocate for for the applicant and Mr. Adwant, learned counsel for the respondent. 2 Cr. Appln. No.3203/2010 2) This is an application preferred by the applicant - original complainant seeking leave to file appeal challenging the judgment and order of acquittal dated 25-6-2010 rendered by the learned Judicial Magistrate First Class, Dhule, Court No.8, in Summary Criminal Case No.1961 of 2006 thereby acquitting the respondent (original accused) for an offence under section 138 of the Negotiable Instruments Act. 3) I have perused the impugned judgment and order dated 25-6-2010 also the Record and Proceedings with the assistance of the learned counsel for the parties. 4) Paragraph 6 of the the impugned judgment is self explicit which reflects that although opportunity was given to the complainant, the complainant failed to advance arguments and necessary order has been passed to that effect on Exhibit 86. On perusal of Exhibit 86, it appears that the learned Advocate for the applicant was busy before other Court and, therefore, could not remain present before the learned trial Court and hence the 3 Cr. Appln. No.3203/2010 Advocate for the applicant preferred an application for adjournment. However, learned trial Court passed order thereon observing that there is no reasonable cause to allow said application and hence rejected the same. The said order also discloses that earlier the applicant had preferred two applications for adjournment i.e. Exhibits 84 and 85 and the same were allowed by the learned trial Court. But the applicant preferred third application Exhibit 86 for adjournment on 25-6-2010 and since there was no reasonable cause to allow the same the learned trial Court rejected the same. Considering the applications Exhibits, 84,85 and 86 and the orders passed thereon by the learned trial Court, the fact remains that the applicant could not get opportunity to advance arguments before the learned trial Court. Hence leave is required to be granted to the applicant to file appeal challenging the impugned judgment in the interest of justice. Accordingly, present application is allowed and leave to file appeal as prayed for is granted to the applicant. 4 Cr. Appln. No.3203/2010 5) The present application be treated and be registered as appeal. 6) Admit. 7) Learned Advocate Mr. S.V. Adwant for the respondent waives service of notice after admission. 8) Considering the facts and circumstances, paper book stands dispensed with, and with the consent of the learned counsel for the parties the appeal is taken up for final hearing. 9) The applicant, original complainant, is a cooperative credit society and the respondent is a member thereof. It is alleged that, the accused i.e. respondent therein obtained loan of Rs.two lakhs from the applicant / original complainant. The accused issued a cheque bearing No.167931 for Rs.3,49,742/- on 28-2-2006 drawn on the Hasti Cooperative Bank Limited, Dondaicha, Branch Maharana Pratap Chowk Dhule towards repayment of the 5 Cr. Appln. No.3203/2010 said loan. The complainant presented said cheque for encashment purpose. However, the said cheque was dishonoured and returned unpaid with endorsement "funds insufficient". Hence the complainant issued demand notice to the accused on 10-3-2006. It is the contention of the complainant that although the said notice was served on the accused she did not repay the cheque amount. Hence the complainant filed complaint against the accused under section 138 of the Negotiable Instruments Act. Accordingly, the accused appeared therein. Her plea was recorded and the accused pleaded not guilty and claimed to be tried. 10) To support the case of the complainant, it examined its representative namely Suresh Sahebrao Jadhav by filing his affidavit in lieu of examination in chief at Exhibit 23 and also produced the disputed cheque in question at Exhibit 28, Bank Memo at Exhibit 29, letter issued by the Bank at Exhibit 30, Office copy of notice at Exhibit 31, Postal acknowledgment at Exhibit 32, returned envelope and notice at Exhibit 33 and resolution dated 15-10-2007 at Exhibit 34. Accordingly, the complainant 6 Cr. Appln. No.3203/2010 adduced oral evidence and produced documentary evidence. On the face of the said position, the accused did not examine herself but examined one witness namely Yogesh Ramesh Gosavi at Exhibit 75 and produced documents namely, a letter dated 12-6-2009 issued under Right to Information Act at Exhibit 50, letter dated 25-10-2007 issued by the Special Auditor, Class I, Cooperative Societies Dhule at Exhibit 51, acknowledgment receipt at Exhibit 52, loan application at Exhibit 53, Consent letter at Exhibit 54, recommendation letter of Director at Exhibit 55, Expenditure receipt at Exhibit 56, demand promissory note at Exhibit 57, copy of Namuna K at Exhibit 58, application for membership at Exhibit 59, loan disbursement rules at Exhibit 60, Karja Rokha at Exhibit 61, agreement at Exhibit 62, Karja Rokha and names and addresses of guarantors at Exhibit 63, terms and conditions stamp at Exhibit 64, scrutiny report and information of the guarantors at Exhibit 65, statement of account at Exhibit 66, reply of the accused to the notice at Exhibit 67, copy of registered notice sent by accused to the complainant at Exhibit 68, statement of bank account 7 Cr. Appln. No.3203/2010 of the accused with the Hasti Cooperative Bank at Exhibit 76 and certified copy of extract of outward register of returned cheque of the Hasti Bank at Exhibit 77. 11) Accordingly, after considering the oral evidence and documents produced by the complainant and also considering the oral evidence and the documents produced by the accused and considering the submissions advanced by the learned counsel for the accused, the learned trial Court concluded that the accused could not be found guilty for the offence punishable under section 138 of the Negotiable Instruments Act, and therefore, consequently acquitted her thereunder by the judgment and order dated 25-6-2010. Being aggrieved and dissatisfied with the said judgment and order dated 25-6-2010, the appellant, original complainant, filed present appeal challenging the judgment and order on the grounds mentioned in the present appeal. 12) At the outset, the appellant attacked on the prime aspect that the appellant - complainant did not get 8 Cr. Appln. No.3203/2010 opportunity to advance arguments before the trial Court and the complainant has been deprived of said very important stage of the trial. The learned counsel for the appellant also canvassed that the appellant had preferred application at Exhibit 86 for adjournment on 25-6-2010 before the learned trial Court but same was rejected, and consequently, the learned trial Court proceeded with pronouncing the judgment and order of acquittal without hearing arguments of the appellant herein, i.e. original complainant. According to the learned counsel for the appellant, principles of natural justice require that the appellant / original complainant be given an opportunity to put forth its case before the trial Court by way of arguments. It is also submitted that although oral and documentary evidence adduced / produced by the complainant was before the Court, the very arguments enunciating the said evidence was not before the Court while deciding the complaint filed by the complainant - appellant which ultimately resulted into dismissal of the complaint amounting to miscarriage of justice. Hence the learned counsel for the appellant urged that matter be 9 Cr. Appln. No.3203/2010 remanded back by quashing the impugned judgment and order dated 25th June 2010 and the appellant, original complainant, be given opportunity to advance arguments before the trial Court and thereafter matter be decided by the learned trial Court afresh on merits. 13) Learned counsel for the respondent - original accused countered the said arguments and opposed the present appeal vehemently and submitted that, the arguments canvassed by the learned counsel for the appellant bear no substance. It is submitted by the learned counsel for the respondent - accused that, due opportunity was given by the learned trial Court to the appellant to advance its arguments but the appellant only did not avail the same. 14) In the said context, learned counsel for the respondent pointed out that the matter was fixed before the trial Court on 8th June 2010 for advancement of arguments but the learned Advocate for the appellant tendered an application at Exhibit 84 for adjournment 10 Cr. Appln. No.3203/2010 contending that, the Advocate for the appellant was not prepared with the matter to submit arguments and, therefore, the learned trial Court allowed the said application considering the grounds mentioned therein and adjourned the matter to 16-6-2010. However, again on 16-6-2010 the learned Advocate for the appellant preferred another application Exhibit 85 contending that the appellant had applied for some certified copies which were not received and, therefore, arguments could not be advanced and hence sought adjournment. It is submitted by the learned counsel that the said application did not disclose the documents of which certified copies were applied for by the appellant. Apart from that, learned trial Court allowed the said application also considering the grounds mentioned therein and the matter was posted on 25-6-2010 for arguments. However, it is submitted, again on 25-6-2010 learned Advocate for the appellant preferred application for adjournment contending that Advocate for the appellant was busy before another Court and, therefore, he was unable to attend the learned trial Court for arguments and hence sought adjournment. However, it 11 Cr. Appln. No.3203/2010 is submitted that, the said application was rejected the learned trial Court observing that there is no reasonable cause putforth by the appellant for adjournment and the learned trial Court proceeded to pronounce the judgment and order of acquittal. 15) In the said context, learned counsel for the respondent submitted that the Advocate busy before another Court is not a ground for adjournment, and it was specifically observed in the order passed by the learned trial Court on the application Exhibit 86 on 25-6-2010 that the applicant had preferred earlier two applications Exhibits 84 and 85 and the same were allowed. Accordingly, it is submitted that, due opportunity was given to the appellant but still the appellant did not avail the same and again sought adjournment which was without reasonable cause and hence consequently same was rejected. Thus, the learned counsel for the respondent submitted that the said application Exhibit 86 was rejected by the learned trial Court rightly. 12 Cr. Appln. No.3203/2010 16) According to the learned counsel for the respondent, sufficient opportunity was given to the appellant to advance his arguments but same was not availed by the appellant. It is further submitted that, the learned trial Court could not wait indefinitely for the argument of the counsel for the appellant and hence rightly proceeded without argument of the appellant on 25-6-2010 delivering the impugned judgment and order. The counsel therefore submits that no interference therein is called for and further urged that, present appeal being devoid of any merits be dismissed. 17) Upon perusal of the record and proceedings, the rival submissions advanced by the parties, undisputedly the complainant as well as accused adduced / produced their respective evidence before the learned trial Court. Moreover, due opportunity was given to the appellant by the learned trial Court for advancing the arguments by allowing applications Exhibits 84 and 85 on 8-6-2010 and 16-6-2010 respectively. Moreover, Advocate busy before another Court is not a ground for adjournment under the 13 Cr. Appln. No.3203/2010 Civil Procedure Code, present proceedings being the proceedings of quasi civil nature under section 138 of the Negotiable Instruments Act. However, the principles of natural justice require that, due opportunity be given to the appellant to advance arguments enlightening and high lighting the evidence before the trial Court which, admittedly, the appellant was deprived of in the present case and, therefore, the said opportunity is required to be given to the complainant in the interest of justice and hence the impugned judgment and order dated 25th June 2010 deserves to be quashed and the matter requires to be remanded back to the learned trial Court to the extent of only for advancement of arguments by the appellant and not beyond that. But simultaneously, the accused is required to be compensated aptly by way of reasonable costs. 18) In the result, present appeal is allowed partly. The impugned judgment and order dated 25th June 2010 stands quashed and set aside and the matter is remitted back to the learned trial Court only to the extent of 14 Cr. Appln. No.3203/2010 advancement of arguments by the appellant, if any, and reply thereto by the accused, if any. The parties are directed to remain present before the learned trial Court on 18th July 2011 and the learned trial Court to hear the arguments of the appellant and reply, if any, of the respondent and to decide matter afresh on its own merits at the earliest with further directions that the Advocates shall not seek any further adjournments unnecessarily and shall cooperate with the Court, subject to payment of cost of Rs.1000/- (rupees one thousand) by the appellant to the respondent within a period of two weeks to be deposited before the trial Court. The record and proceedings be sent back to the trial Court forthwith. Sd/- (SHRIHARI P DAVARE, J .) rsl