1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 1528 OF 2010 Krishna s/o Yashwant Bankar ...Applicant VERSUS Sunil Ashokrao Garud ...Respondent ..... Smt.U.P.Kale-Wayal, advocate for the applicant Shri R.M.Deshmukh, advocate for the respondent ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 14 th July, 2010 PER COURT : 1 This is an application preferred by the applicant (original complainant) seeking leave to file appeal against the order dated 5.3.2010 passed by learned 3rd Judicial Magistrate, First Class, Aurangabad in S.C.C. No. 6442 of 2009 acquitting the respondent (original accused) for the offence under section 138 of the Negotiable Instruments Act. 2 Perused the impugned order dated 5.3.2010 and it 2 appears that since the complainant was absent on the said date, the accused came to be acquitted under Section 256 of the Code of Criminal Procedure. Hence, it is apparent that the said order has not been passed on merits after adducing the evidence, and therefore, leave needs to be granted to the applicant to file the appeal against the said order. 3 In the result, present application is allowed and applicant (original complainant) is permitted to file appeal against the order of acquittal dated 5.3.2010 passed by 3rd Judicial Magistrate, First Class, Aurangabad in S.C.C. No. 6442 of 2009 acquitting the respondent/accused under Section 138 of the Negotiable Instruments Act. 4 By consent of learned counsel for the parties, present application is treated as the appeal against the said order of acquittal dated 5.3.2010 and paper book stands dispensed with. 5 Heard learned counsel for the parties in the appeal. Admit. Shri R.M.Deshmukh, learned counsel accepts the service of notice for the respondent after admission. 3 6 Smt. Kale-Wayal, learned counsel for the applicant tendered the certified copy of the roznama of the concerned matter. Same is taken on record and marked ‘X’ for identification purpose. 7 Perused the roznama as well as the impugned order dated 5.3.2010. For ready reference, the impugned order dated 5.3.2010 is reproduced hereunder :- “ The complaint is filed on 12.11.2009. Plea of the accused was recorded on 1.12.2009. Thereafter the case was fixed for evidence. Complainant is absent since long. The case is fixed for order since last two dates. Advocate of the accused is pressing for the dismissal of the complaint since last two dates. Record shows that, the complainant is not interested in the prosecution. Accused is acquitted as per Section 256 of Cr.P.C. Bail bonds of the accused stand cancelled. Proceedings is closed accordingly. “ 8 After perusal of the afore said order, it appears that the complaint was filed on 12.11.2009 and plea of the accused was recorded on 1.12.2009 and thereafter case was fixed for evidence on 8.1.2010. It also appears from the certified copy of the roznama that 4 on 8.1.2010 advocate for the complainant was present, although there is no mention about the presence of the complainant. However, it appears that advocate for the complainant gave the application, as non-bailable warrant was issued against the accused on 1.12.2009 and matter was posted on 8.1.2010. On 8.1.2010 matter was posted on 29.1.2010. It appears that on 29.1.2010 advocate for the complainant was present and application for adjournment was filed and matter was posted on 20.2.2010. However, on 20.2.2010, the complainant and advocate were absent. Hence, application was filed by the accused to dismiss the complaint in default, and accordingly, matter was posted on 5.3.2010. On 5.3.2010, it appears that accused and his advocate were present and order was passed below Exh.1 and complaint came to be dismissed. 9 Accordingly, it is apparent from the roznama that the complainant and his advocate remained absent on 20.2.2010 and 5.3.2010, on which date the complaint came to be dismissed. It also appears that non-bailable warrant was issued against the accused twice. Apart from that, complaint is under Section 138 of the Negotiable Instruments Act and principles of natural justice require that due opportunity be given to the parties to adduce/produce their 5 respective evidences, and hence, the impugned order deserves to be quashed and set aside, to enable the parties to get the said due opportunity. Moreover, it is also apparent that the impugned order dated 5.3.2010 has not been passed on merits after adducing/producing the evidence by the parties, and accused came to be acquitted under Section 256 of the Code of Criminal Procedure, and therefore, also present appeal deserves to be allowed. 10 In the result, present appeal is allowed and the impugned order dated 5.3.2010 passed by learned 3rd Judicial Magistrate, First Class,Aurangabad in S.C.C. No. 6442 of 2009 acquitting the accused under Section 138 of the Negotiable Instruments Act stands quashed and set aside and matter is remanded back to the Court of 3 rd Judicial Magistrate, First Class, Aurangabad, to be decided on merits, in accordance with law, and the parties are directed to appear before the concerned court on 23.8.2008 and present appeal stands disposed of accordingly. (SHRIHARI P. DAVARE), JUDGE. dbm/crap1528.10