1 A IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.5124 of 2003 WITH CRIMINAL APPLICATION NO.5125 OF 2003 WITH CRIMINAL APPLICATION NO.5126 OF 2003 WITH CRIMINAL APPLICATION NO.5127 OF 2003 M/s.Mafatlal Industries Ltd. .. Applicants V/s. M/s.Kalpataru Timbers(I)Pvt. Ltd.& Ors. .. Respondents Mr.Sanjog Parab with Mr.Girish Kulkarni for the Applicants. Smt.M.H.Mhatre, A.P.P.for the State. Mr.A.H.H.Ponda i/b.M/s.Mulla & Mulla & CBC for Respondents. CORAM : A.R.JOSHI, J. DATED : JUNE 16TH,2009. P.C. Heard rival submissions at length on all the 2 four applications for leave to prefer separate appeals. By this common order four leave applications are being disposed of. 2. Earlier on 9th October, 2003 by different orders passed under the provisions of section 256 of Criminal Procedure Code, trial Magistrate dismissed four complaints which were filed by the present applicants/appellants. Rival parties in all the four matters are same. The complaints were filed for taking action against the present Respondents for the offence punishable under section 138 read with section 142 of Negotiable Instruments Act. 3. The total aggregated value of the dishonoured cheques which are the subject matters of all the four complaints amounts to Rs.5 crores. It is significant to note that the cases were filed somewhere in the year 1996 before the learned Metropolitan Magistrate Court at Mumbai and probably due to the work load of the Magistrate Court such cases remained pending even for recording of the plea of the accused persons till the year 2000. Admittedly, plea of the Respondent accused was recorded on 30th December, 2000. In between on various dates since 2000 and 2003, there were various adjournments and during said period of three 3 years reportedly on six occasions complainant was absent, however, the Advocate of the complainant was present and on various such dates exemption application was preferred. 4. It is noticed that on 3rd May, 2002 when said exemption application was preferred, it was allowed on imposing costs of Rs.1,000/- on the complainant and thereafter the matter was posted for dismissal, however, again the matter continued. Probably for the reasons of over burdening of the courts, the present matter came to be transfered from one Metropolitan Magistrate’s Court to another Metropolitan Magistrate Court, on January, 2003 and notices were sent to the concerned parties so that the opportunity to be given to the rival parties and get their grievance redressed. This must be done by the concerned transferee court considering the import of the provisions of section 138 of Negotiable Instruments Act & concerning the bouncing of cheques valued at Rs.5 crores. After such transfer of cases from January, 2003 again for two dates, it appears that the complainant party was absent, however, the advocate was present and exemption applications preferred were granted. 5. So far as the arguments on behalf of the 4 present applicants are concerned, regarding the steps which were taken during April, 2003 to October 2003, it is brought to the notice of this Court that on 3rd April, 2003 the application for amalgamation of the cases and for recording of common evidence was preferred on behalf of the accused Respondents and it was allowed on 23rd July, 2003. Thereafter, reportedly, the matter was fixed for evidence, however, the advocate was present, but, that particular date application for dismissal of the complaint was preferred by the Respondent accused and it was adjourned to 4th September, 2003. On that date also complainant party remained absent and reportedly accused were also absent and time was sought by the Advocate for the complainant and it was so granted till 9th October, 2003. This was the last date for all the four complaints on which date for absence of complainant the impugned order came to be passed, it reads as under : “Complainant absence. Advocate present. All accused and Advocate present. No evidence lead by the complainant. Hence case stands dismissed for want of evidence. All accused stands acquitted. Proceeding closed” 6. It is vehemently argued on behalf of the Respondents accused by taking shelter of various 5 authorities of the this Court and also the authorities of Hon’ble Apex Court, that even in the matter of acquittal due to dismissal of complaints under section 256 of Criminal Procedure Code, there are same parameters for interfering with such acquittal, as those for interference in the acquittal on merits is concerned. It is also argued that if two views are possible on given circumstances, then, there cannot be an interference by the High Court discarding the view taken by the trial Magistrate. In fact, in order to canvass this proposition, reliance is mainly placed on following authority : “(2007)4 S.C.C.415 Chandrappa & Ors. V/s. State of Karnataka.” Though, the shelter of said authority was taken on behalf of Respondent accused, still it is fairly submitted that said authority is in the matter in which there was acquittal on merits. However, it is further argued that considering the scope of the High Court in interfering with the acquittal, the principles lead down in the said authority cannot be compromised. Apart from the said authority much reliance was placed on the following authority : 6 “(2008) 2 S.C.C.(Cri) 645 S.Rama Krishna V/s. S.Rami Reddy & Ors.” On perusal of said authority, it is found that said authority is on the same 138 of Negotiable Instruments Act proceedings, dealing with the scope of the High Court in interfering with the acquittal as per the provisions of section 256 of Criminal Procedure Code. When said authority was brought to the notice of this Court on behalf of the Respondent accused, during counter arguments learned Advocate for the applicant submitted that on the facts, the present authority can be distinguished and considering the facts of the present matter as to the presence of the Advocate for the complainant party, if not on all the dates but almost on all the dates, the ratio propounded by the cited authority cannot be taken shelter of. In the said authority the facts were such that reportedly for 14 dates nobody represented the complainant as it appears from the mentioning in the paragraph No.3 of the said authority. Still in paragraph No.8, it is mentioned that on some dates Respondents were either present in the court in person or were represented by their advocate. However, it is further mentioned 7 in paragraph No.8 that continuously for about 15 dates fixed for hearing they remained absent. So it is transpired that definitely for 14 dates nobody was there to represent the matter. Considering the facts and the noting of the Metropolitan Magistrates Court, it must be said that such a factual position is not at par with the facts in S.Rama Krishna V/s. S.Rami Reddy (Supra) Apart from the absence of complainant party, still on various occasions applicants sought exemption and the crucial period for which the court was concerned to immediately take up the matter for hearing, was some where in the year 2003, when the application for common evidence was made and was allowed. In fact, such allowing of common evidence application was dated 23rd July, 2003, and thereafter on two dates complainant was absent and on third date the matter came to be dismissed, as mentioned above. 7. The learned counsel appearing for the Respondent also relied on the authorities as under : “2008 ALL MR (Cri.) 2762 M/s.Sonam Finance Lease Co.Pvt.Ltd. V/s. Vasantsingh Shankar Narayansingh & Anr. AND 2002 CRI.L.J.2764 M/s.Lloyds Finance Ltd. V/s. 8 M/s.SKG Solvex Ltd.& Ors.” 8. Considering the specific circumstances of the present matter and still considering the ratio propounded by the authorities cited before this Court on behalf of the Respondent accused, in the opinion of this Court, it must be said that no two views are possible and the view taken by the trial Magistrate as to the complainant party not interested to proceed with the matter, cannot be accepted. It must be said that this court has not taken this view as to complainant party negligent, considering the presence of the advocate and filing of the applications for exemptions. Otherwise also in the opinion of this Court the matters involving the bouncing of cheques totally valued at Rs.5 crores are required to be heard and put to the logical end after hearing the parties on merits. This Court has observed that there is much delay in the matter as the complaints were filed in the year 1996 and the pleas of the accused were recorded in the year 2000 and the dismissal orders passed in October, 2003. Moreover, after filing of the present leave petitions before this court immediately in the same year 2003, they are still pending till this date of June 2009. In fact all such protraction of 9 the proceedings is not at all contemplated by the legislation while amending the Negotiable Instruments Act for expeditious hearing of the matter within six months from the filing of the complaints. However, the factual position is till before this Court as to delay in deciding such matters from the year 1996 till 2009, and the present position is that there is acquittal of accused without there being a full fledged trial in the matter of dishonour of cheques valued at Rs.5 crores. 9. Considering the above circumstances, in the opinion of this Court, it is a matter in which the leave petitions are required to be allowed and the appeals are required to be admitted and also to be disposed of by order giving directions to the learned trial Magistrate to dispose of all the four pending criminal cases within a time bound programme. Hence, order : :: O R D E R :: i. Leave petitions are allowed. ii. Appeals are admitted and accordingly allowed with following 10 directions. a) All four matters be sent back to the concerned learned Metropolitan Magistrate’s Court for disposal of criminal cases, according to law. Trial Magistrate to dispose of all the four pending cases expeditiously within a period of six months after receipt of the R & P. iii. Upon request on behalf of Respondent accused, operation of present order is stayed for the period of six weeks. iv. Certified copy of this order is expedited. (A.R. JOSHI, J.)