- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.4043 OF 2008 APPLICATION NO.4043 OF 2008 APPLICATION NO.4043 OF 2008 Ramakant Vishwasrao Phadtare ...Applicant vs. Avinash Bhausaheb Chougule The State of Maharashtra ...Respondents Mr.Dilip Bodake for the applicant Mr.Vishwanath S.Talkute for Respondent no.1 Mr.Sandeep Korgaonkar A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : MARCH 19,2009 : MARCH 19,2009 : MARCH 19,2009 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. By order dated 6th January 2009, the parties were put to notice that the application and/or Appeal will be taken up for final hearing at admission stage. 2. The applicant is the complainant in a complaint filed against the first respondent alleging commission offence punishable under section 138 of the Negotiable Instruments Act,1881. Process was issued on the complaint. By impugned order dated 18th August 2008, the learned Judicial Magistrate noted that the applicant and his Advocate were absent. The learned Judge therefore dismissed the complaint and acquitted the first respondent of the offence alleged against him. 3. The learned counsel for the applicant invited my attention to the Roznama of the case. He pointed out that on 14th January 2008, the first respondent accused appeared through an Advocate. The case was adjourned to 28th February 2008. He - 2 - pointed out that on 28th February 2008 and 24th March 2008, the first respondent-accused remained absent. He stated that on 16th April 2008, the case was adjourned to 2nd May 2008. On 2nd May 2008, though the applicant was absent, his Advocate was present. The first respondent made an application praying for dismissal of complaint in exercise of power under section 256 of the Code of Criminal Procedure,1973 (hereinafter referred to as the said Code). On 24th May 2008, though the applicant was absent, his Advocate applied for time for filing evidence affidavit. On 8th August 2008, the case was adjourned to 14th August 2008. The Advocate for the applicant pointed out that while noting the next date in the diary, the learned Advocate for the applicant noted the same as 6th October 2008. The learned Advocate for the applicant stated that from 4th October 2008, the applicant was suffering from viral fever and was advised to take bed rest. He submitted that as the applicant was under an impression that the next date was 6th October 2008, he did not instruct his Advocate to submit a medical certificate on 14th August 2008. He has placed reliance on a xerox copy of a diary of cases maintained by the Advocate for the applicant. He submitted that though reliance is placed by the first respondent on a communication issued by him to the applicant, by filing rejoinder, the applicant has denied the receipt of the said letter. 4. The learned counsel for the respondent submitted that the applicant has not filed an affidavit of his Advocate - 3 - representing him in the trial court to show that he had wrongly noted the date fixed in the complaint on 8th August 2008. He submitted that on earlier three dates, the applicant remained absent and there is no explanation for the said absence. He pointed out that on 16th April 2008, an application was made by the Advocate for the applicant before the trial court stating that as Regular Civil Appeal Nos.201 and 202 of 2000 filed by the applicant were placed on board before the District Court, affidavit of evidence could not be filed. The learned counsel for the first respondent invited my attention to the additional affidavit filed by the first respondent. In the said affidavit, it was pointed out that the Regular Civil Appeal Nos.201 and 202 of 2000 were not filed by the applicant and in fact the applicant is not a party to the said Appeals. He pointed out that on 16th April 2008, the Advocate for the applicant applied for adjournment in the said two Appeals on the ground that the Advocate for the applicant was busy in an urgent case. The learned counsel for the first respondent relied upon the letter dated 20th August 2008 allegedly sent by the first respondent to the applicant. He submitted that the said letter which was sent by the first respondent under the Certificate of Posting shows that in August 2008 itself the applicant was informed about the impugned order. He submitted that the first respondent has a good defence on merits and his agony cannot be prolonged further by restoring the complaint. - 4 - 5. The learned counsel for the applicant stated that the letter dated 20th August 2008 allegedly written by the first respondent is not received by the applicant. He submitted that by filing an additional affidavit, the applicant has explained the manner in which the application for adjournment was moved by the Advocate for the applicant on 16th April 2008. He submitted that there is more than sufficient explanation for the absence of the applicant and very harsh and unjust action has been taken by the learned trial Judge by dismissing the complaint. When a query was made by the court, on instructions of the applicant, the learned counsel for the applicant stated that the applicant is ready and willing to pay costs of Rs.10,000/- to the first respondent. 6. I have given careful consideration to the submissions. It will be necessary to refer to the Roznama of the proceedings. The complaint was filed by the applicant on 15th March 2007. Process was issued on the said complaint on 17th March 2007. Perusal of the Roznama shows that on 14th January 2008, an Advocate filed appearance on behalf of the first respondent. On that day, the first respondent submitted bail. The case was adjourned to 28th February 2008 on which date the first respondent-accused was absent and the Advocate applied for exemption. The case was adjourned to 24th March 2008. Even on the said date, the first respondent accused was absent and an application was made for exemption. The Roznama dated 16th April 2008 does not disclose that the applicant was absent. - 5 - However, on that day, the Advocate for the applicant made an application for adjournment at Exh.13. In the said application it was stated that as Regular Civil Appeal Nos.201 and 202 of 2000 of the applicant were to be listed in the District Court, affidavit in lieu of examination in chief of the applicant could not be filed. The learned Judge granted adjournment on the basis of the said application. The case was adjourned to 2nd May 2008. On that day, the applicant was absent but his Advocate was present. An application was made by the first respondent praying for dismissal of the complaint in exercise of power under section 256 of the said Code. On that day, the learned Magistrate passed an order on the said application directing the applicant to file his reply. The case was adjourned to 24th June 2008 for filing reply. An application for adjournment was moved by the Advocate for the applicant on that day stating therein that the applicant was forced to go out of station for the work of business and hence he was unable to remain present. The said application was granted by the learned Judge by mentioning that it was granted as a last chance. The Roznama shows that the matter was adjourned to 8th August 2008. On 8th August 2008 and 14th August 2008, the applicant and his Advocate were absent. The applicant has placed reliance on the medical certificate dated 10th August 2008 which records that the applicant was under medical treatment for viral fever from 4th August 2008 and he was advised to take bed rest up to 10th August 2008. This is the explanation of the applicant for absence on 8th August - 6 - 2008. The applicant has placed reliance on the diary maintained by his Advocate Shri S.R.Bhosale. A xerox copy of the page of the diary of 8th August 2008 has been annexed. It contains list of more than 20 cases of the Advocate which were on board. At item no.2 is the complaint filed by the applicant. There are seven columns in the diary viz; title, previous date, court’s name, case no., names of the parties, next date and stage. The previous date shown against serial no.2 is 24th June 2008 and the next date is shown as 6th October 2008. The xerox copies of pages of 14th August 2008 and 18th August 2008 are also annexed to the application which show that there is no entry of the complaint of the applicant on the said two dates. A xerox copy of the page of the diary of 6th October 2008 contains an entry of the said complaint and against the column ‘stage’ it is mentioned that the case was dismissed for default. From the pages which are annexed to the application it appears that the said diary has been regularly and meticulously maintained by the concerned Advocate. There is no reason to doubt the case of the applicant that on 8th August 2008, the learned Advocate noted the next date as 6th October 2008. The entries made on 8th August 2008 and 6th October 2008 in the diary support the case of the applicant. As the Advocate Mr.Bhosale noted on 8th August 2008 that the next date fixed in the case was 6th October 2008, it is obvious that the Advocate for the applicant was not aware that the case was adjourned to 14th August 2008 and thereafter to 18th August 2008 when the - 7 - impugned order was passed. 7. Reliance has been placed by the first respondent on communication dated 20th August 2008. It is contended that the said communication was made by the first respondent to the applicant Under Certificate of Posting. The receipt of the said communication has been denied by the applicant. By the said communication by pointing out that the complaint was dismissed, a demand was made for return of three cheques. Considering the nature of the contents of the said communication, in a normal course, the same ought to have been sent by Registered Post A.D. It is difficult to believe that such a communication could be issued only under Certificate of Posting. It is difficult to accept the case made out by the respondent that the said communication was received by the applicant. As stated earlier the applicant has denied on oath that he received the said letter. 8. A strong objection was raised by the Counsel for the respondent by contending that in the application for adjournment made by the Advocate for the applicant on 16th April 2008, false grounds were mentioned therein. In the additional affidavit of the applicant, it is stated that the application dated 16th April 2008 was filed by a Junior Advocate and due to inadvertence it was stated that the applicant was a party to Regular Civil Appeal Nos.201 and 202 of 2000. In fact, in the said appeals, the Advocate for - 8 - applicant was representing one Mr.Nandkumar Jagtap. The said application is not signed by the applicant and it is signed by a junior Advocate on behalf of the advocate appointed by the applicant. 9. The aforesaid documents show that on 16th April 2008 and on 24th June 2008, the trial court granted adjournment to the applicant. On 24th June 2008, the trial Court noted that the adjournment was granted as a last chance and the case was adjourned to 8th August 2008. The extracts of the diary maintained by the Advocate for the applicant show that he noted the next date as 6th October 2008 instead of 14th August 2008. Therefore, the applicant and his Advocate were under an impression that the next date fixed was 6th October 2008. It is not unusual considering the large pendency of cases in the courts of Judicial Magistrates that the cases are adjourned for a longer period. That is the reason why the applicant and his Advocate were absent on 8th August 2008, 14th August 2008 and 18th August 2008. The extract of the diary produced before this court maintained by the the concerned Advocate clearly show that on 8th August2008, he noted the next date as 6th October 2008 and the corresponding entry has been made on the page of 6th October 2008. Therefore, there is sufficient explanation brought on record for the absence of the applicant and his Advocate on 8th August 2008, 14th August 2008 and 18th August 2008. The first respondent cannot find fault with the absence of the Applicant on 2nd May 2008 and 24th June 2008 as - 9 - the applications for adjournment made by the Applicant were granted by the larned Magistrate and on the said two dates the Advocate for the applicant was present. 10. The learned counsel for the first respondent relied upon the decision of the Apex Court in case of S. Rama Krishna Vs. Rama Rao [2008 (5) SCC 535]. Considering the peculiar facts of this case which are discussed above, the said decision will have no application. The Apex Court was dealing with the case which remained pending for more than 5 years and the defaults were committed by the applicant. In the present case the complaint was pending before the trial court for a period of about one year and five months. 11. Thus, the impugned order will have to be quashed and set aside and the complaint will have to be restored to the file. Prejudice, if any, caused to the first respondent can be compensated by ordering payment of costs of Rs.10,000/-. 12. Hence, I pass the following order : i) Impugned order dated 18th August 2008 is quashed and set aside and criminal case bearing case no.SCC 628 of 2007 is restored to the file of the learned trial Judge. ii) The applicant is directed to pay costs of Rs.10,000/- to the first respondent. A demand draft in the sum of - 10 - Rs.10,000/- is handed over by the Advocate for the Applicant to the Advocate for the first respondent. The Advocate for the first respondent states that he is accepting the demand draft without prejudice to the right of the first respondent of challenging this order. iii) Parties are directed to appear before the trial court on 21st April 2009 at 11.00 a.m. The learned Magistrate will proceed with the case from the stage at which it was pending on the date of passing the impugned order. iv) Hearing of the complaint is expedited. v) The learned Magistrate will make an endeavour to dispose of the complaint on or before 31st December 2009. JUDGE JUDGE JUDGE