-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4549 OF 2006 IN CRI. APPEAL NO. OF 2006 Prakash Kanhaiyalal Sharma .. Applicant/Appellant. V/s. 1. Mr.Purushottam Kanhaiyalal Sharma and another. .. Respondents. --- Mr. S.S.Kulkarni for the Applicant. None for the Respondent no.1. Mr. A.S.Shitole, APP for the State. --- CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. DATED : 13th JANUARY, 2009. DATED : 13th JANUARY, 2009. DATED : 13th JANUARY, 2009. P.C.: P.C.: P.C.: 1. This application is filed by the original complainant for grant of leave to file appeal against the order of acquittal. 2. By the order dated 17.10.2007, a notice before admission was issued and made returnable on 22.11.2007. It was directed by that order that the notice to indicate that the application and the appeal will be disposed of finally at the stage of admission itself. By the -: 2 :- subsequent order dated 2nd April,2008 the applicant was directed to serve the respondent by Advocate’s notice either personally or by speed post/courier/e-mail and file affidavit of service before the returnable date. Advocate’s notice sent by the registered post A.D. was returned back as the same was not claimed by the respondent no.1 and therefore, the applicant filed the affidavit of service, pointing out that the respondent no.1 deemed to have been served. 3. On 21.07.2008 again notice was issued to the respondents and was made returnable on 15.09.2008. It is mentioned in the order that the notice to indicate that if leave is granted the appeal will be disposed of finally at the stage of admission. The applicant served this notice on the respondent no.1 by registered post A.D., however, the same is returned back with postal remarks "refused". At this stage, it is worth to mention that there occurred some delay in filing the aforesaid application and therefore, the applicant/complainant was constrained to take out application for condonation of delay. The respondent did not appear to oppose the application for condonation of delay inspite of service of notice on the respondent no.1 and the delay therefore, was condoned exparte. -: 3 :- 4. In the aforesaid facts and circumstances, the respondent no.1 is deemed to have been served and thus I proceed to dispose of this application for leave to appeal as well as the appeal by this order. 5. Heard Mr. Kulkarni, learned counsel for the applicant/appellant and learned APP for the State. 6. I am satisfied that a case is made out for leave to file appeal and therefore, the application for leave to file appeal against the acquittal is granted and the appeal is admitted. 7. By consent the appeal is taken up for final hearing. 8. The appellant is the original complainant who filed criminal case no. 467/S/2003 under the provision of section 138 of the Negotiable Instruments Act against the respondent no.1. It was the case of the complainant that he advanced payment of Rs.Six lacs to the respondent no.1. As against this, the respondent no.1 agreed to supply natural Henna Powder to the appellant. The respondent no.1 failed to supply the said goods, however, issued one cheque of Rs.Three lacs on 18.05.1999. The said cheque was dishonoured and therefore, the appellant -: 4 :- gave legal notice to the respondent. The same was not replied and hence, the applicant constrained to file the aforesaid appeal. 9. The process was issued by the learned Magistrate against the respondent no.1 and the respondent no.1 appeared before the court of learned Magistrate and contested the matter. Hearing of the criminal complaint was commenced and the appellant submitted affidavit of his examination in-chief on 07.02.2004. It is this affidavit of examination -in-chief, the learned Magistrate found that it was not duly sworn and verified. The learned court brought this defect to the notice of the Advocate of the appellant and suggested the appellant’s Advocate to file the proper affidavit after completing the formalities as per law. It appears that the appellant’s advocate failed to file appropriate affidavit and therefore, the learned Metropolitan Magistrate held that the affidavit which was not duly sown and verified, cannot be read in evidence and consequently, the complaint of the complainant came to be dismissed. 10. Mr. Kulkarni, the learned counsel for the appellant submitted that the applicant/appellate had taken advise of senior counsel from Pune who suggested -: 5 :- him to submit a new affidavit as per the rules and complete the formalities. Accordingly the affidavit was also prepared and was duly verified by the competent authority. He further submitted that the same ready affidavit of examination -in-chief was given by the appellant to his Advocate as the same was to be submitted in the court alongwith the application for excuse and pardoning of the mistakes which occurred on the part of the applicant in the trial court. The said affidavit was handed over by the applicant to his counsel on 14.09.2006 itself. Inspite of the above, the appellant’s counsel again refused to submit the said sworn and verified affidavit in the trial court and consequently on 16.09.2006, the learned Judge of the trial court dismissed the case of the applicant for want of evidence. 11. The learned APP for the respondent no.2 -State left the matter to the discretion of the court. 12. Having heard the learned counsel for the applicant/appellant and the learned APP, I am of the view that there is merit in the appeal and the same deserves to be allowed by quashing and setting aside the impugned order passed by the learned Magistrate. It is not disputed by the learned counsel for the applicant that earlier affidavit of the appellant, i.e. the affidavit -: 6 :- of his examination in-chief was not in proper form. It is, further, averred that the mistake was pointed out to the appellant’s counsel by the learned Magistrate and inspite of this, the learned counsel for the appellant did nothing. Thereafter, the appellant again on the basis of the advise of a senior counsel prepared a fresh affidavit and got it verified and certified from the competent authority and the same was given to the appellant’s counsel alongwith application on 14.09.2006 itself. Exh. ‘D’ Collectively to the petition is the application with permission to file fresh affidavit in the proper from. Both the application and the fresh affidavit was executed at Pune. Perusal of the affidavit shows that the same was prepared at Pune on 12.09.2006. Thus the applicant’s case in this regard is corroborated by the document at Exh.‘D’. Though the affidavit was prepared by the applicant and handed over to his counsel on 14.9.2006 for filing in his criminal application; however, the counsel for the applicant refused to file and consequently the impugned order was passed by the learned trial court. Above fact shows that the appellant was diligent. However, for the failure of his counsel, the complaint came to be dismissed on technical grounds. It is well settled principle that the litigant should not suffer for the default of his Advocate. I have found that the applicant/appellant has taken all necessary -: 7 :- steps to file proper affidavit, however his complaint was dismissed for non-filing of the proper affidavit by his Advocate and in that view of the matter, I am of the considered view that the appellant deserves to be given an opportunity to prove his case on merit. I therefore, dispose of this appeal by passing the following order : ORDER i. The impugned judgment and order, acquitting the respondent no.1 for the offence punishable under section 138 of the Negotiable Instruments Act is quashed and set aside and the matter is remanded back to the learned Metropolitan Magistrate, 6th Court at Mazgaon, Mumbai for hearing afresh. ii. The learned Metropolitan Magistrate shall permit the appellant to file his affidavit of examination-in-chief and thereafter shall proceed to dispose of the case in accordance with law with a prior notice to the respondent no.1. iii. The appellant shall send copy of this order to the respondent no.1 by registered post acknowledgment due. -: 8 :- iv. As observed above, the application for leave to appeal as well as the Appeal is disposed of in the above terms. (R.V.MORE,J.) .....