IMPORTANT POINT
Technical dismissal of complaint should be avoided.

Shrihari P. Davare, J.—Heard learned counsel for the respective parties.

2. This is an application, preferred by the applicant (original complainant), seeking leave to file appeal, challenging the order, dated 20.9.2010, passed by the learned Judicial Magistrate, First Class, Osmanabad, in S.C.C. No.1079 of 2010, thereby dismissing the said complaint under Section 256 of the Code of Criminal Procedure, for want of prosecution and acquitting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act.

3. Considering the contents of the application and after considering the rival submissions advanced by the learned counsel for the parties, since the dismissal of the complaint for want of prosecution by order, dated 20.9.2010, is a technical dismissal under Section 256 of the Code of Criminal Procedure and not on merits, leave to file appeal granted. Present application be treated as appeal.

4. Admit. Shri S.B. Rohile, learned counsel waives service of notice for respondent No.1 (original accused) after admission.

5. With the consent of learned counsel for the parties, appeal is taken up for final hearing.

6. The appellant i.e. original complainant has filed S.C.C. No.1079 of 2001, dated 25.4.2001, against the respondent No.1 (original accused) under Section 138 of the Negotiable Instruments Act and under Section 420 of the Indian Penal Code.

7. It is the contention of the appellant that the appellant is a Cooperative Sugar Factory, registered under the Maharashtra Cooperative Societies Act, 1960. The respondent is a Labour Contractor, who had entered into an agreement with the complainant to supply the labourers and transportation for crushing of the sugarcane for the year 2000-01, and thereby obtained advance from the complainant.

8. After verifying the accounts, it was found that amount of Rs.30.893 was due from the accused to the complainant. Hence, the accused issued cheque No. 234374, dated 27.12.2000 for Rs. 30,893 to the complainant towards the repayment of the said dues. The complainant presented the said cheque for encashment purpose through the Osmanabad District Central Cooperative Bank Ltd., Branch Terananagar. However, the said cheque was dishonoured and returned unpaid with the endorsement, “Funds insufficient” on 1.3.2001. Hence, the complainant issued demand notice to the accused on 12.3.2001 by Registered Post A.D. and called upon the accused to repay the amount of the cheque and said notice was served upon the accused. However, despite service of said demand notice, the accused failed to comply with the requisitions contained therein. Hence, the complainant filed complaint before the learned Judicial Magistrate, First Class, Osmanabad against the accused under Section 138 of the Negotiable Instruments Act and under Section 420 of the Indian Penal Code. .

9. After perusal of the complaint and verification, the learned Judicial Magistrate, First Class, Osmanabad issued process against the accused under Section 138 of the Negotiable Instruments Act on 27.11.2001. Accordingly, the accused appeared therein. However, on 20.9.2010, since the complainant and his advocate were absent, but the accused was present, learned Judicial Magistrate, First Class, Osmanabad dismissed the said complaint for want of prosecution and acquitted the accused by passing the order to that effect. Being aggrieved and dissatisfied by the said order, the complainant has preferred the present appeal and prayed for quashment thereof.

10. Learned counsel for the complainant submitted that on some dates the complainant was present and on some dates he was absent, but even the accused was also absent on some dates, and therefore, non-bailable warrant was required to be issued against him to secure his presence. Learned counsel for the complainant also canvassed that the dismissal of the complaint on 20.9.2010 is a technical dismissal under Section 256 of the Code of Criminal Procedure and the acquittal of the