cran677.10 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 677 OF 2010 Padmashree Gramin Bigar Sheti Sahakari Patsanstha Limited, Wambori ...Applicant Versus Vilas Ramchandra Dhagude ...Respondent ..... Mr. P.B. Shirsath, advocate for the applicant Mr. Rahul R. Karpe, advocate for respondent ..... CORAM: S. S. SHINDE, J. DATED: 17th JANUARY, 2011 PER COURT:- 1 Heard. This application is filed with a prayer to grant leave to prefer appeal challenging the judgment and order dated 16.12.2009 passed by the learned J.M.F.C. Rahuri in S.T.C. No. 1740 of 2008 for the offence punishable under Section 138 of Negotiable Instruments Act. 2 Upon hearing counsel for the parties, I am inclined to grant leave to prefer appeal. Office to register the appeal. cran677.10 -2- 3 With consent of the parties, appeal is taken up for hearing. 4 Learned counsel appearing for the appellant invited my attention to ground No.3 of the appeal, which reads as under:- iii) The learned Judge erred in appreciating the legal aspect that though the photo copy of notice was produced at Exhibit 16, the R.P.A.D. envelop which is refused by the respondent is produced at Exhibit 17 and therefore non acceptance of the notice Exhibit 16 as office copy is incorrect and illegal as held by the learned Judge. Relying on the said ground, counsel for the appellant would submit that the impugned judgment and order came to be passed without any attempt on the part of the learned Judge to appreciate that the envelope at Exh.17 was containing original copy of notice which was returned back from respondent since the same was not accepted. According to counsel for the appellant, the original copy of notice is in the said envelope at Exh.17, which was sent to the respondent. Therefore, counsel for the appellant would submit that this appeal may be allowed. cran677.10 -3- 5 On the other hand, counsel for the respondent vehemently opposed this appeal and submitted that the ground No.3, as mentioned in this appeal, is taken for the first time before this court. There was no attempt on the part of the appellant to demonstrate that the envelope at Exh.17 contained copy of original notice, which was sent to the respondent. Therefore, counsel would submit that this appeal may be rejected. He further submitted that if this appeal is allowed, the respondent will again face hardship. 6 Upon hearing counsel for the appellant and the respondent and upon the perusal of the contents of appeal and more particularly ground No.3, I am of the opinion that this appeal deserves to be allowed partly. It is true that on perusal of the impugned judgment, it appears that the appellant has not specifically taken a stand before the court below that the envelope at Exh.17 contained the original notice, which was sent to the respondent. However, entire case of the complainant cannot be thrown out merely on that ground. Therefore, the ends of justice would meet if the complaint bearing S.T.C. No. 740 of 2008 is restored to its original position. 7 Needless to mention that the respondent has suffered hardship due to the mistake committed by the appellant, therefore, the respondent can be compensated by awarding costs of Rs.5000/- cran677.10 -4- which would be deposited by the appellant within three weeks from the date of receipt of this order by the Trial Court. Learned counsel for the appellant assures this court that the appellant will deposit the said amount of Rs.5000/- in the trial court within stipulated time. Upon deposit of the same, the respondent will be at liberty to withdraw the said amount. 8 In the result, S.T.C. No. 740 of 2008 is restored to its original file. The impugned judgment and order is quashed and set aside. In so far as clause II of the order is concerned, it is kept open for the trial to take appropriate decision. The trial court to proceed in the matter only after deposit of the amount by the appellant. 9 The trial court to adjudicate the issue on its own merits. The contention of the appellant as well as the respondent about Exh.17 before the court below will be appreciated by the trial court on its own merits. Record and proceeding be sent back forthwith to the concerned Court within one week from today. ( S. S. SHINDE. J.) rlj/