( 1 ) cria4123.08 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4123 OF 2008 WITH CRIMINAL APPEAL ST. NO. 821 OF 2008 Murlidhar s/o. Harkisandas Manwani .. Applicant/ Age. 62 years, Occ. Agriculture, Appellant R/o. Raver, Tq. Raver, Dist. Jalgaon. Versus Shri Sharangdhar s/o. Ramlal Lohar .. Respondent Age. 52 years, Occ. Business, R/o. Raver, Dist. Jalgaon, In the capacity of partner, M/s. R.G. Lohar, Raver, District – Jalgaon. Mr. Milind Patil, Advocate for the applicant Mr. P.N. Kutti, Advocate for the respondent. CORAM : SHRIHARI P. DAVARE,J. DATED : 27.04.2011 O R A L J U D G M E N T :- 1. Heard learned Counsel for the parties. This is an application preferred by the applicant seeking leave to file ( 2 ) cria4123.08 appeal challenging the order dated 25.08.2008, passed by the learned Judicial Magistrate, First Class, Raver, Dist. Jalgaon, in Criminal Case No. 981 of 2006, thereby dismissing the complaint filed by the applicant/original complainant, in default and acquitting the respondent/original accused. 2. Considering the position that the complaint filed by the complainant has been dismissed in default thereby acquitting the accused, it is apparent that it is technical dismissal under Section 256 of the Cr.P.C. and therefore leave to file the appeal is granted and the appeal be registered and numbered accordingly. 3. Admit. 4. Mr. P.N. Kutti, Advocate waives service of notice for sole respondent, after admission. 5. With the consent of learned Counsel for the parties, the appeal is taken up for final hearing. ( 3 ) cria4123.08 6. It is the case of the complainant that the accused/ respondent herein is a partner of M/s. R.G. Lohar. There were cordial relations between the complainant and said accused, and hence, the accused requested for hand loan of Rs. 2 lakhs to the complainant to meet the business exigencies. Accordingly, the complainant gave hand loan of Rs. 2 lakhs to the accused to satisfy his business difficulties, by way of a cheque drawn on Raver Peoples Co- operative Bank Limited, Raver. Thereafter, the complainant demanded said amount from the accused repeatedly but the accused avoided to make repayment thereof. On the persistent demands of the complainant, ultimately the accused issued a cheque bearing No. 0441500 for Rs. 2 lakhs dated 22.03.2006 drawn on United Western Bank Ltd., Raver Branch. Accordingly, the complainant presented said cheque for encashment purpose through State Bank of India, Raver Branch. However, said cheque was dishonoured and returned unpaid with the cheque return memo of the bank on 28th March, 2006 with endorsement “funds insufficient”. The complainant gave demand notice to the accused on 26.04.2006 and demanded cheque amount of Rs. 2 lakhs from the accused within 15 days. ( 4 ) cria4123.08 Said notice was received by the accused on 28th April, 2006. However, the accused neither complied with the requisitions contained in the said notice nor replied to the said notice. Hence, the complainant filed complaint against the accused under Section 138 of the Negotiable Instruments Act on 09.06.2006. After recording verification of the complainant on 15.06.2006, process was issued against the accused on 10.07.2006. Accordingly, the accused appeared in the matter. However, ultimately said complaint came to be dismissed in default on 25.08.2008 and thereby the accused came to be acquitted, since the complainant remained absent on various dates as mentioned in the impugned order dated 25.08.2008. Being aggrieved and dissatisfied by the said order, the complainant preferred present appeal and prayed for quashment thereof. 7. Learned Counsel for the appellant submitted that although the complainant remained absent on the dates as mentioned in the impugned order dated 25.08.2008, it is pointed that the accused also remained absent on number of dates and even bailable warrant was issued against the ( 5 ) cria4123.08 accused twice and he gave undertaking before the Court that he would remain present before the Court on each and every date thereafter and inspite of that he remained absent further before the Court. It is also submitted by the learned Counsel for the appellant that on 14.12.2007 although the complainant remained absent the Court was busy in Civil work as disclosed in the Roznama. It is also submitted that although on 16.01.2008, 28.03.2008 and 12.05.2008, the complainant remained absent, the learned Presiding Officer of the Court was on leave on those dates. It is further submitted by learned Counsel for the appellant that even on 25.08.2008, the, when the dismissal order was passed at 1.20 p.m., thereafter within ten minutes the complainant remained present before the Court and tendered an application for setting aside said order of dismissal and for restoration of complaint along with affidavit of the complainant in lieu of examination-in-chief. But the learned Trial Court observed on the said application that “Provision of setting aside order be mentioned” and ultimately the complainant was required to approach this Hon’ble Court by preferring an application seeking leave to file appeal along with present ( 6 ) cria4123.08 appeal. Moreover, the learned Counsel for the appellant submitted that the cheque in question of Rs. 2 lakhs issued to the complainant by the accused was out of business transaction and vital rights of the appellant are involved in the complaint. Therefore, the technical dismissal of the complainant would prejudice said rights of the complainant, and hence, opportunity is required to be given to the complainant to prosecute said complaint on its own merit, and accordingly, the learned Counsel for the appellant urged that the present appeal be allowed. 8. Learned Counsel for the respondent opposed the present appeal vehemently and submitted that Roznama of the learned Trial Court reflects that the complainant remained absent before the Trial Court consistently on numerous dates and accordingly the complainant is not interested in the said complaint. Therefore, the complainant cannot be allowed to keep the case pending for indefinite period and consequently the learned Trial Court dismissed the said complaint rightly by passing the impugned order on 25.08.2008 observing that the complainant remained absent for long period and due to ( 7 ) cria4123.08 said long absence, it shows that the complainant does not want to proceed with the case, and no interference in the said impugned order is warranted in the present appeal. 9. To substantiate his arguments, learned Counsel for the respondent relied upon para 12 of the judicial pronouncement in the case of S. Rama Krishna V/s. S. Rami Reddy (deceased by LRs) & Ors., reported in 2008 AIR SCW 2824, which is as under :- “12. The High Court itself had come to the finding that the respondents were not interested in getting the matter prosecuted. Despite the same, it allowed their appeal opining that any lis between the parties should be decided on merits rather than on technicalities. On what basis such a statement of law was made is not known. No precedent was cited; no reason has been assigned. The High Court failed to take into consideration the fact that it was dealing with an order of acquittal and, thus, the principle of law which was required to be applied was that, if two views are possible, a judgment of acquittal should not ordinarily be interfered with. There exists a distinction between a civil case and a criminal case. Speedy trial is a fundamental right of an accused. The orders passed by the competent Court of law as also the provisions of Code of Criminal Procedure must be construed having regard to the Constitutional scheme and the legal principles in mind.” ( 8 ) cria4123.08 . Accordingly, learned Counsel for the respondent urged that the present appeal is without any substance and same is devoid of any merits, and hence, same be dismissed. 10. I have perused the record and proceedings in Criminal Case No. 981 of 2006 pertaining to the Trial Court as well as perused the contents of the judicial pronouncement cited by the learned Counsel for the respondent carefully. At the outset, it is apparent from the Roznama maintained by the learned Trial Court that the complainant as well as the accused remained absent before the learned Trial Court on various dates and it is not that only the complainant remained absent before the Trial Court, but the accused also remained absent before the Trial Court on number of dates. Moreover, even the bailable warrant was issued against the accused twice. Thereafter, he gave undertaking before the Trial Court that he would remain present before the said Court henceforth while giving application for cancellation of said warrant on 17.11.2006. However, inspite of giving said undertaking before the Trial Court, the accused remained ( 9 ) cria4123.08 absent before the Trial Court thereafter also. Moreover, it is also seen from the Roznama that although the complainant was absent before the Trial Court on 16.01.2008, 28.03.2008 and 12.05.2008, the Presiding Officer of the said Trial Court was also on leave on the said dates. The learned Counsel for the appellant further pointed out that even on the date of dismissal of complaint on 25.08.2008, the impugned order was passed at 1.20 p.m. on the said day and thereafter the appellant preferred an application for setting aside said order along with affidavit of the complainant in lieu of examination-in-chief within ten minutes, but same was not considered, since there was no such provision. 11. Considering the aforesaid position and applying parameters of the judicial pronouncement cited by learned Counsel for the respondent in the instant case, it is apparent that the facts and circumstances in the said case on hand before the Apex Court and the facts and circumstances in the present case differ from each other, since it does not appear that the accused also remained absent on various dates in the case on hand before the Apex Court, and since it does ( 10 ) cria4123.08 not appear that any warrant was issued against the accused to ensure his presence in the case on hand before the Apex Court, but so is in the instant case and bailable warrant was issued against the accused twice, and he gave undertaking before the Trial Court and inspite of that he remained absent thereafter also in the instant case. There cannot be two opinions in respect of the principle laid down in the said judicial pronouncement, but considering the factual aspects in the said case and in the instant case, which differ from each other, the said judicial pronouncement cannot be of any aid and assistance to the accused i.e. the respondent herein. 12. Moreover, vital legal rights of the complainant are involved in the complaint before the Trial Court and the principles of natural justice require that an opportunity be given to the complainant to prosecute said complaint on its own merits, and therefore, the matter deserves to be remitted back to the learned Trial Court by setting aside the impugned order dated 25.08.2008 with direction to the parties to remain present before the Trial Court on specified date and also the Trial Court is required to be requested to decide ( 11 ) cria4123.08 the said matter afresh on its own merits. However, simultaneously the accused is required to be compensated aptly due to inconvenience caused to him, by awarding reasonable costs to him, which can be quantified at Rs. 5000/- (Rupees Five Thousand Only), which would meet the ends of justice. 13. In the result, present appeal is allowed and the impugned order dated 25.08.2008 stands quashed and set aside and the matter is remitted back to the learned Trial Court with directions to the parties to remain present before the said Court on 6th June, 2011 at 11.00 a.m. and the learned Trial Court is requested to decide the said matter on its own merits afresh expeditiously and parties are directed not to seek any adjournments unless warranted emergently, subject to payment of costs of Rs. 5000/- (Rupees Five Thousand Only) to be paid by the appellant to the respondent on or before 6th June, 2006. The record and proceedings be sent back to the concerned Trial Court. ( 12 ) cria4123.08 14. The Criminal Application and Criminal Appeal stand disposed of accordingly. [SHRIHARI P. DAVARE,J.] snk/2011/MAR11/cria4123.08