1 crap636.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 636 OF 2011 IN CRIMINAL APPEAL NO. OF 2011. Hanumant Babasaheb Kute ...Applicant VERSUS Dattatraya Sarjerao Sanap ...Respondent ..... Shri Prasanna S. Chavan, advocate for applicant Shri A.N.Nagargoje, A.P.P. for sole respondent ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 22 nd March, 2011 PER COURT : - 1 Heard learned counsel for the respective parties. 2 This an application preferred the applicant (original complainant) seeking leave to file appeal, challenging the judgment and order, dated 22.12.2010, rendered by learned IInd Joint Judicial Magistrate, First Class, Osmanabad below Exh.1 in S.C.C. No. 1071 of 2008, thereby dismissing the said complaint, due to absence of the complainant and his advocate, under Section 256 of the Code of 2 crap636.11 Criminal Procedure and acquitting the respondent (original accused) for the offence punishable under Section 138 of the Negotiable Instruments Act. 3 The applicant is the original complainant; whereas the respondent is the original accused and both are residents of Jamwantnagar, Taluka Bhoom, District Osmanabad, and were having cordial relations between them. Since the accused was in need of money, he demanded Rs.3,00,000/- in the month of May, 2008 for a period of two months from the complainant. As the relations between them were cordial, the complainant gave Rs. 3,00,000/- to the accused, on the condition to repay the said amount within a period of two months. After lapse of two months, the complainant demanded the said amount from the accused, but the accused sought 15 days time to pay the same. Thereafter, the accused issued cheque of Rs.3,00,000/- to the complainant on 25.8.2008 drawn on Marathwada Gramin Bank. The complainant presented the said cheque for encashment purpose. However, the said cheque was dishonoured and returned with the endorsement, “insufficient balance”. Hence, the complainant issued demand notice to the accused on 8.10.2008, which was received by the accused on 15.10.2010. However, as the accused did not comply with the requisite contents of the notice, the complainant filed the complaint 3 crap636.11 under Section 138 of the Negotiable Instruments Act r/w Section 420 of the Indian Penal Code, which was registered as S.C.C. No. 1071 of 2008. 4 The accused appeared therein and furnished bail papers. 5 Thereafter the matter was posted on 26.5.2010 and adjourned to 28.5.2010. It is the contention of the complainant that on the said date, advocate for the complainant filed an application for adjournment, and the matter was adjourned on 24.8.2010. It is the contention of the complainant that in the mean time, the matter was transferred to the evening court, but the complainant and his advocate did not notice the said fact and they remained absent on 24.8.2010. On the said date, the Trial Court put up the matter for dismissal on 17.9.2010, however, as 17.9.2010 was holiday, and therefore, the matter was adjourned to 22.12.2010 and since the complainant and his advocate were absent on the said date, the accused filed an application Exh. 18 for dismissal of the complaint, and accordingly, learned IInd Joint Judicial Magistrate, First Class, Osmanabad, by impugned judgment and order dated 22.12.2010 by order passed below Exh. 1 dismissed the said complaint under Section 256 of the Code of Criminal Procedure and acquitted the accused for the offence punishable under Section 138 of the 4 crap636.11 Negotiable Instruments Act. Being aggrieved and dissatisfied by the said order, the complainant/applicant has preferred the present application. 6 Considering the contents of the application and after hearing the rival submissions advanced by the respective parties, this application is allowed and leave to file appeal is granted, and present application is disposed of accordingly. The office is directed to register and number the appeal. Appeal is admitted and taken up for final hearing forthwith, with the consent of the learned counsel for the parties. 7 Admit. Learned counsel Mr. Nagargoje for the respondent waives the service of notice after admission. 8 Appeal is taken up for final hearing with the consent of the learned counsel for the parties. 9 It is the contention of the applicant/appellant that he was unaware about the fact that the case was transferred to the evening court, and therefore, he could not remain present on 24.8.2010. Moreover, he was ill from 21.12.2010 to 23.12.2010 and was under medical treatment and annexed the medical certificate dated 5 crap636.11 27.12.2010 to that effect at Exh. ‘C’. The applicant further submits that there was no intention on the part of the complainant to remain absent, as he has been prosecuting the matter since beginning sincerely. 10 Having the comprehensive view of the matter and considering the rival submissions advanced by the learned counsel for the parties, and also considering the medical certificate dated 27.12.2010 produced at Exh. ‘C’ disclosing that the complainant was sick during the period from 21.12.2010 to 23.12.2010 and further considering the fact that the accused and his counsel remained absent on 22.12.2010 before the Trial Court resulting into dismissal of the complaint, it appears that the appellant has pleaded and proved the sufficient cause for his non-appearance before the Trial Court, and therefore, present appeal deserves to be allowed, setting aside the impugned order, dated 22.12.2010 dismissing the complaint of the complainant under Section 256 of the Code of Criminal Procedure, to enable the complainant to prosecute the said complaint on its own merits. 11 Besides that, it is apparent that dismissal of the complaint filed by the complainant by order dated 22.12.2010 appears to be technical dismissal and the said complaint has not been dismissed 6 crap636.11 on its own merits, and the principles of natural justice requires that due opportunity be given to the complainant as well as to the accused to adduce/produce their respective evidences before the court, and therefore also, the impugned order deserves to be quashed and set aside and the matter is required to be remanded back to the Trial Court, with direction to give due opportunity to the complainant as well as to the accused to adduce/produce their respective evidences, and to decide the matter on its own merits, in accordance with law, and the parties are also required to be directed to appear before the Trial Court on a specific date, subject to payment of reasonable costs by the complainant to the accused. 12 In the result, present appeal is allowed, subject to payment of reasonable costs by the complainant to the accused, which is quantified at Rs.5,000/-, within the period of two weeks from today, before the Trial Court, and impugned order, dated 22.12.2010, dismissing the complaint of the complainant under Section 256 of the Code of Criminal Procedure, stands quashed and set aside and the matter is remitted back to the Trial Court, with direction to give opportunity to the complainant and the accused to adduce/produce their respective evidences before it, and to decide it on its own merits, in accordance with law. The parties are directed to remain present before the Trial Court on 18.4.2011 at 11.00 a.m. and 7 crap636.11 they are also directed not to seek unwarranted adjournments and to cooperate with the learned Trial Court, in deciding the said matter expeditiously. (SHRIHARI P. DAVARE, J.) dbm/cra636.11