IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4028 OF 2008 Mr.Jitendra S. Bafna .. Applicant Versus Baban Ramchandra Sonawane & Anr. .. Respondent Mr.C.V.Lad for the applicant. Mr.Sachin Chavan h/f Mr.S.S.Kulkarni for respondent no.1. Mr.P.A.Pol, A.P.P for the State. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 25th March 2009. : 25th March 2009. : 25th March 2009. ORAL JUDGMENT: . Heard learned advocate for the applicant and the learned advocate for the 1st respondent. The advocate for the 1st respondent on instructions states that the 1st respondent is not agreeable to settle the dispute in terms of the joint application submitted by the applicant and the 1st respondent before the trial Court on 26th February 2008. 2. By order dated 25th February 2009, this Court recorded that if there is no settlement between the parties, leave will have to be granted and the appeal will have to be finally decided at admission stage. (2) Accordingly, leave is granted and the appeal is taken up for final disposal. The applicant filed a complaint against the 1st respondent alleging commission of an offence under section 138 of the Negotiable Instruments Act, 1881. On 29th May 2006 the applicant filed affidavit in lieu of examination in chief and the cross examination of the applicant commenced on 14th February 2008. On 26th February 2008 a joint application was submitted by the applicant and the 1st respondent recording that the parties have mutually agreed to settle the matter. The 1st respondent agreed to pay certain amount by 30th April 2008 and the balance amount by 17th May 2008. Thereafter it appears that the complaint was kept on 26th March and 27th March 2008. By order dated 29th April 2008, the 1st respondent was acquitted by the learned Magistrate in exercise of powers under section 256 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the said Code). The learned Judge noted that after joint application was filed, on 26th March 2008, 27th March 2008 and on the day of passing the impugned order, the applicant did not appear and did not offer himself for cross-examination. 3. The learned counsel appearing for the applicant (3) submitted that the joint application at Exhibit 33 clearly shows that there was a complete settlement between the parties and the 1st respondent had agreed to pay certain amounts to the applicant. He submitted that apart from the fact that the 1st respondent had agreed to pay the last instalment in May 2008, the applicant was sick and therefore he could not remain present. Reliance is placed on a medical certificate annexed to the application. He, therefore, submitted that there was no justification for exercising power under section 256 of the said Code. 4. The learned counsel appearing for the 1st respondent invited my attention to the order passed on 26th February 2008 on the joint application made by the parties. He submitted that the said order clearly puts the applicant to the notice that the case has to proceed as the complaint was very old. He submitted that there is nothing on record to show that the medical certificate annexed to the aplication was genuine. He submitted that assuming that the medical certificate annexed to the application is genuine, that is no excuse for prolonged absence of the applicant. He, therefore, submitted that no interference is called for with the impugned order of acquittal. (4) 5. I have carefully considered the submissions. The impugned order itself records that affidavit in lieu of examination in chief was filed by the applicant on 29th May 2006. The cross-examination of the applicant commenced on 14th February 2008. It is not recorded by the learned trial Judge that case was delayed on account of any lapse on the part of the applicant. On 14th February 2008, the case was adjourned to 26th February 2008. On that day parties submitted a joint application which reads thus: ". The application on behalf of the accused and complainant is as under: . That it has been mutually decided by the complainant and accused to settle the matter. That the abovesaid matter is settled at Rs.75,000/- (Seventy Five Thousand). . That accused will pay Rs.50,000/- (Fifty Thousand) on 30th April 2008 and balance of Rs.25,000/- (Twenty Five Thousand) on 17th May 2003. (5) . That it is prayed to please grant time for compliance." The said application records that the 1st respondent was to pay a sum of Rs.50,000/- by 30th April 2008 and the balance amount of Rs.25,000/- was to be made on 17th May 2008. 6. The 1st respondent has not disputed the fact that said application was filed by both the parties and the application is signed by the 1st respondent. By carrying out amendment to the said Act by the Act No.55 of 2002, the offence under section 138 has been made compoundable by bringing section 147 of the said Act on the statute book. The application dated 26th February 2008 in an evidence of the fact that the parties were intending to compound the offence subject to payment of certain amount by the 1st respondent. The first instalment, as evidenced by the application, was payable on 30th April 2008 and the last one was in May 2008. Looking to the terms incorporated in the said agreement there was no reason for the learned Judge to pass an order under section 256 of the said Code on 29th April (6) 2008. As per the agreement recorded in the application dated 26th February 2008, the parties had shown willingness to compound the matter and the 1st respondent was to pay first instalment on 30th April 2008. In the light of the joint application admittedly submitted by the parties, the learned Judge could not have found fault with the applicant if he did not offer himself for the cross-examination. The learned Judge ought to have granted time to the parties atleast till 17th May 2008 to allow the applicant to compound the complaint. However, that was not done. After filing joint application of such nature, the applicant could have legitimately expected that on 17th May 2008 there will be compounding of offence. There was no occasion for the learned Magistrate to exercise discretionary power under section 256 of the said Code on 29th April 2008. The effect of the impugned order is that though parties intended to compound the offence, the learned Magistrate did not allow them to do so. 7. As stated earlier now as of today, the 1st respondent is not willing to abide by what is mentioned in the joint application. Therefore, a case is made out for quashing and setting aside the impugned order and for restoration of the complaint. (7) 8. Hence, I pass the following order: (i) The impugned order dated 29th April 2008 is quashed and set aside. (ii) The complaint bearing S.C.C.No.894 of 2003 is restored to the file of the learned trial Judge. (iii) The learned trial Judge will issue fresh summons to the 1st respondent and will thereafter proceed with the de-novo trial. (iv) Application/appeal is allowed in above terms. (v) No orders as to costs. (A.S.Oka,J)