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BOMBAY HIGH COURT
Shrihari P. Davare, J.
Angad —Applicant
versus
Kishan —Respondent
Criminal Application No. 1941 of 2012
Converted into Criminal Appeal No. 587 of 2012
Decided on 28.9.2012
Counsel for the Parties:
For the Applicant:Mr. S.T. Veer, Advocate.
For the Respondent:Mr. Hiraji Gaikwad, Advocate.
IMPORTANT POINT
Doctrine of audi alteram partem contemplates that no one should be condemned unheard.
Headnote:Negotiable Instruments Act, 1881—Section 138 read with Section 420 of IPC—Criminal Procedure Code, 1973—Sections 239 and 256—Dishonour of cheque—Discharge of accused—Absence of complainant—Complainant was represented by his Advocate—As per Roznama case was fixed for receipt of report of service of summons upon accused and it was fixed for orders and not for appearance of accused or for hearing and it could not have been dismissed in default on said date, in contravention of provision of Section 256(1) of Code of Criminal Procedure—Doctrine of audi alteram partem contemplates that no one should be condemned unheard—If impugned order is allowed to hold ground without giving opportunity to complainant to prosecute complaint on its own merits, he would feel prejudiced about his rights—Interest of justice requires that opportunity be given to complainant to adduce evidence and matter be decided on its own merits—Impugned order deserves quashment—Impugned order passed by Judicial Magistrate dismissing complaint quashed and matter remitted back to trial court to decide the same afresh. (Paras 12 to 15)
Shrihari P. Davare, J.—Heard Adv. Mr. S.T. Veer for the applicant, and Adv. Mr. Hiraji Gaikwad for the respondent.
2. For the reasons stated in the present Application, leave granted and the present Application be treated and numbered as Criminal Appeal.
3. Admit.
4. Adv. Mr. Hiraji Gaikwad waives service of notice after admission.
5. By the present appeal, the appellant seeks to challenge the order below Exhibit 1 in STCC No. 241/2008, dated 30th June 2010, passed by the learned Judicial Magistrate (F.C.), Renapur (District : Latur), thereby dismissing the complaint of the appellant (original complainant), in default, and thereby consequently discharging the accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881, and Section 420 of Indian Penal Code.
6. Parties are hereinafter referred to as per their original status i.e. complainant and accused.
7. The factual matrix which gave rise to the present appeal are as follows :
The appellant (original complainant) is a consumer of Osmanabad Janata Sahakari Bank Ltd., Branch Latur, whereas the respondent (original accused) is working as Clerk in the said Bank, and therefore, they came into contact with each other and developed friendship between them. The accused requested the complainant for the hand loan of Rs. 90,000/- for his family necessity and assured to repay the said loan amount after a period of six months. Hence, the complainant gave the said amount of Rs. 90,000/- to the accused as per his demand on 9-1-2002. After the lapse of period of six months, the complainant asked the accused to repay the said amount. However, the accused avoided to repay the said amount to the complainant, but gave a cheque to him bearing No. 219686, dated 22nd August 2003, for Rs. 90,000/-, drawn on Osmanabad Janata Sahakari Bank Ltd., Branch Omerga (District : Osmanabad) towards repayment of the said amount. Accordingly, the complainant deposited the said cheque given by the accused in his bank account. However, the said cheque was dishonoured and was returned unpaid with the endorsement “funds insufficient” in the account of the accused, along with the bank return memo and covering letter dated 11-9-2003. Hence, complainant issued legal notice to the accused on 19-9-2003, through Advocate, by RPAD and UCP and called upon him to repay the said amount of the cheque. However, the accused failed to comply with the requisitions contained in the said notice. Hence, the complainant instituted STCC No. 4886/2003 against the accused before learned Judicial Magistrate (F.C.), Latur, for the offence punishable under Section 138 of Negotiable Instruments Act and Section 420 of Indian Penal Code on 17-11-2003.
8. Learned Judicial Magistrate (F.C.), Latur, issued summons to the accused which was served upon the accused, but he did not appear before the court. Hence, the complainant took step to issue bailable warrant against the accused. However, the accused did not appear before the court inspite of execution of said bailable warrant. Consequently, learned trial court issued non-bailable warrant against the accused and thereafter the accused appeared before the said court on 29-8-2007. Accordingly, he was taken into Magisterial Custody Remand and was released on bail. Thereafter, the said complaint was transferred to the newly constituted court at Renapur (District : Latur) and the said complaint was re-numbered as STCC No. 241/2008. However, the accused remained absent before learned Judicial Magistrate (F.C.), Renapur. Hence, the said court issued summons to the accused for his appearance. However, the accused remained absent before the said court. Hence, the complainant took steps for issuance of notice to the surety of the accused and also paid process fee for non-bailable warrant and notice to the surety. Thereafter, learned Presiding Officer was on leave and even said complaint was referred to Loknyayalaya for settlement. However, accused did not respond. Thereaft
