1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. CRIMINAL APPEAL NO.303/2008 (Mahindra & Mahindra Financial Services Limited .vrs. Maroti Babbanaji Ughade) ------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders. and Registrar's orders Mr. M.R. Joharapurkar, Advocate for appellant. .......... CORAM : P.D. KODE, J DATED : JANUARY 31, 2011 Heard. The appellant/complainant in Summary Criminal Case No.9253/2006 of the Court of Judicial Magistrate, First Class Special Court (Section 138 of Negotiable Instruments Act), Nagpur has appealed against the order dated 15.3.2008 dismissing complaint in-default for want of prosecution and acquitting the accused/respondent from the commission of offence punishable under Section 138 of the Negotiable Instruments Act. The complainant has instituted the said case in said court on the allegation of respondent/accused having committed such offence by failing to pay the amount of Rs.1,73,944/- in spite of receiving of demand notice after cheque drawn by him after presentation by 2 the complainant was returned unpaid by his banker. The glance at the order appealed reveals of same being passed on the count of appellant having failed to take the steps for more than one year, nobody had appeared on behalf of him and even on the date of said order also none had appeared on behalf of the appellant in spite of issuance of notice dated 15.2.2008 to the Advocate for the appellant through Secretary of District Bar Association, Nagpur and the District and Sessions Judge, Nagpur and such a notice for appearance being published on the Notice Board. Learned counsel for the appellant, by drawing attention to the order-sheet produced and particularly the process form dated 26.4.2006 has rightly submitted that passing of such a order is clearly indicative of the non application of the mind, as the matters therein are contrary to the record of the said case. It is the crux of submission that in accordance with the order issuing process passed upon the said complaint on 26.4.2006, requisite compliance was duly made by the complainant by affixing process fee upon the printed process form to be utilized for such a purpose. He has rightly submitted that glance at the said form and so also the other record reveals that in spite of the process is being paid, no summons ever at all was issued to the appellant. Thus, learned counsel is right in the submission that no compliance on the part of appellant had remained to be made. It was urged that even the process form does not reveal that court fee stamp affixed were cancelled. 3 In the premises aforesaid, trial court was wholly unjustified in dismissing the complaint on the count stated in the order. Such a order cannot be legally sustained and hence deserves to be quashed and set aside and accordingly the same stands quashed and set aside and the matter is remanded back to the trial Court for disposing the same in accordance with the law, as expeditiously as possible and in any event by the end of March–2012. The complainant shall appear before the trial Court on 7th March, 2011. The Criminal Appeal stands disposed of accordingly with the aforesaid directions. In view of disposal of Criminal Appeal No. 303/2008, Criminal Application No.2256/2008 also stands disposed of. JUDGE Gulande