1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 873 OF 2006 Dnyanoba s/o Vithalrao Salunke age 56 years, occ. Agri r/o Vithalnagar, Near Parijat Colony Khadgaon, Tq. & Dist. Latur. .. APPELLANT VERSUS 1 Vishwanath s/o Vithal Musne age 65 years, occ. Agri r/o At Bhopla, Tq.Latur At present residing at Narayannagar Latur, Tq. & Dist. Latur. 2 The State of Maharashtra .. RESPONDENTS Shri A.N. Gaddime, Advocate holding for Shri V.D.Gunale, Advocate for the appellant. ===== CORAM : R. M. BORDE, J. DATE : 1 st July, 2009. ORAL JUDGMENT : 1 Admit. 2 This is an appeal raising exception to the order of acquittal recorded by the learned Chief Judicial Magistrate, Latur on 21-4-2005 in Criminal Revision no. 74/2005. 2 3 Leave to file appeal in the matter was granted by this court on 15-12-2006. Application in respect of grant of leave was decided after hearing the parties. Instant appeal was placed for consideration before this court on 21-4-2009. The same was adjourned at the request of learned counsel for the appellant to 28-4-2009. On the adjourned date also the matter came to be postponed and as such the same was taken up for consideration on 25-6-2009. As nobody represented the respondent, the matter was again directed to be listed on the next day. On 26-6-2009 also learned counsel for the respondent remained absent and this court therefore passed order putting the parties to notice that the appeal would be disposed of finally at admission stage on 1-7-2009. It was instructed to the learned counsel for the appellant to inform the learned counsel for the respondent in writing in respect of the order passed by this court. Accordingly, the appellant has given intimation to the learned counsel for the respondent in respect of listing of the matter. It has also been intimated to the learned counsel for the respondent that the appeal would be taken up for final disposal. However, inspite of intimation in writing given to the learned counsel representing the respondent, the counsel is absent. Hence, the appeal is taken up for consideration and is being disposed of finally. 4 Appellant / original complainant presented complaint in respect of dishonour of cheque against respondent no. 1 under section 138 of the Negotiable Instruments Act and section 420 of the Indian Penal Code before the Court of Chief Judicial Magistrate, Latur. According to the complainant, cheque issued by the respondent for an amount of Rs.25,000/- has been dishonoured on account of insufficiency of funds in the Bank 3 account maintained by respondent. According to the complainant, said amount was legally recoverable from the respondent. After presentation of the complaint, respondent was served with the process and he caused his appearance before the court. The matter was listed for evidence in the year 2005. However, on the dates prescribed in the matter, the complainant did not produce evidence. The matter was ultimately listed for recording of evidence on 21-4-2005. On the adjourned date, complainant and his counsel were absent. As such, the complaint came to be dismissed under section 256 of the Code of Criminal Procedure and the accused is acquitted of the offence charged. 5 Appellant / original complainant contends that the evidence was not lead in the matter as there were talks of compromise in progress between the parties. It is also pointed out that on the prescribed date i.e. On 21-4-2005, learned counsel representing the complainant was out of station. There was also another matter bearing Regular Civil Suit no. 447/89 between the same parties pending before the Court of Jt. Civil Judge, Junior Division, Latur. On the given date i.e. On 21-4-2005 both the matters i.e. Regular Civil Suit no. 447/89 as well as Criminal Complaint 7449/2000 were prescribed for hearing. After the criminal matter was called out in the morning session, the complainant was in search of advocate and after he found that the advocate is not available, he tried to find out the junior advocate for representing in the matter. As such, the complainant could not remain present and lead evidence before the court. Accordingly the complaint came to be dismissed. An application was presented for restoration of the complaint of the complainant. However, the same was 4 not entertained. Revision was presented to the Court of Sessions. However, the revision petition was also not entertained for the reason that the same is not maintainable against the order of acquittal. Revision petition as such came to be withdrawn by the complainant / appellant herein on 20-2-2006. 6 Considering the reasons set out by the complainant justifying his absence on the date prescribed in the matter, I am of the opinion that appellant / complainant needs to be extended further opportunity to put up his case before the Magistrate. Order passed by the learned Chief Judicial Magistrate, Latur on 21-4-2005 needs to be quashed and set aside. In this view of the matter, the appeal stands allowed. Order passed by the learned Chief Judicial Magistrate, Latur on 21-4-2005 in Criminal Case no. 7449/2000 directing dismissal of the complaint and acquittal of the accused stands quashed and set aside. Complaint is restored to its original number. Complainant be extended further opportunity to lead evidence. Trial court shall proceed to dispose of the Criminal case no. 7449/2000 in accordance with law. ( R. M. BORDE, J.) dyb/office/criapp873.06.odt