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HIGH COURT OF BOMBAY
M.M. Nerlikar, J
Amit Sunarlal Shahu – Appellant
Versus
Hare Madhav Electronics, Through its Proprietor, Vijay Motilal Pinjwani – Respondent
CRIMINAL APPLICATION [APPA] NO.322 OF 2023 IN CRIMINAL APPEAL [STAMP] NO. 2237 OF 2023
Certainly. Based on the provided legal document, here are the key points:
The case involves an appeal against an order dismissing a complaint under Section 138 of the Negotiable Instruments Act, 1881, due to non-prosecution, which resulted in the acquittal of the accused (!) (!) .
The appellant, who had lent money to the respondent and obtained a dishonored cheque, filed a complaint that was dismissed for want of prosecution after repeated absences and adjournments (!) (!) .
The appellant demonstrated that their absences were neither deliberate nor intentional, citing reasons such as reliance on court procedures, inadvertent listing errors, and efforts to pursue the case diligently (!) (!) .
The court noted that multiple appearances were made by the appellant and their counsel, and that some absences were due to circumstances beyond their control, such as court officer leave or clerical errors in listing dates (!) (!) .
The court emphasized the importance of adhering to principles of natural justice, which require giving the complainant a fair opportunity to prosecute the case on merits, and that dismissing for technical reasons alone is unjust (!) .
The court found that the procedural safeguards were not adequately observed and that the order of dismissal and acquittal was therefore unjustified, warranting interference (!) .
The appeal was allowed, the impugned order was set aside, and the case was remanded for fresh adjudication on its merits, with directions for the parties to appear on a specified date (!) (!) .
The court also imposed a cost on the appellant for non-compliance with procedural directions, to be paid to the respondent (!) .
Overall, the decision underscores the importance of a liberal approach to procedural lapses, especially when the parties have demonstrated genuine efforts to prosecute their case, and highlights the need to balance procedural rules with substantive justice (!) (!) .
Please let me know if you require further analysis or assistance.
| Table of Content |
|---|
| 1. loan agreement initiated dispute under the negotiable instruments act. (Para 4) |
| 2. explanation for absence and previous adjournments despite efforts demonstrated intent to prosecute. (Para 5 , 6) |
| 3. judicial discretion to ensure procedural rights upheld, dismissals for technical reasons discouraged. (Para 8 , 9) |
| 4. final ruling reinstates case for trial, affording another chance to prosecute on merits. (Para 10) |
ORAL JUDGMENT :
Heard the learned counsel for the appellant.
2. Admit.
3. The present application is being filed seeking leave to file appeal against the order dated 07/01/2023 passed below Exh.1 by the learned Additional Chief Judicial Magistrate, Court No.5, Akola, in Summary Case No.1989/2019. The appellant further prays for quashing and setting aside of the said order, wherein, the learned Magistrate was pleased to dismiss the complaint for want of prosecution, resulting into acquittal of the accused.
4. Brief facts of the case are that the appellant / complainant and the respondent / accused are well acquainted with each other and have cordial relations. On 07/12/2018, respondent / accused approached the appellant and demanded Rs.2,50,000/- for business purpose. The appellant gave Rs.2,50,000/- to the respondent as a hand loan on his assurance that he would repay the same to the appellant within a period of one month. Thereafter, the respondent / accused towards discharge of his legal liabilities, issued a cheque of Rs.2,50,000/- to the appellant. Upon presentation of the cheque, it was dishonoured and accordingly the appellant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 , against the respondent, which was registered as Summary Criminal Case No.1989/2019 on 03/04/2019. After registration of the Summary Criminal Case, it seems that the case was adjourned from time to time. On 05/01/2023, the Additional Chief Judicial Magistrate, Court No.5, Akola, passed the following order :-
“ The Complainant and his counsel repeatedly called, but no one present through complainant side till 4.00 p.m. The matter is pending for evidence of complainant. In absence of complainant matter could not proceed further.
Thus, complainant is directed to appear and lead evidence on next date otherwise the matter will be disposed of for want of prosecution.”
Subsequently on 07/01/2025, the learned Additional Chief Judicial Magistrate, Court No.5, Akola, passed the following impugned order:-
“ On perusal of proceeding, it appears that same is instituted in the year 2019. Since long, it was pending for evidence, but complainant failed to lead evidence. Thus, on 05.01.2023 order passed below Exh. 1 and matter posted for dismissal order. Even today, whenever called the complainant is not appeared before the Court and not taken any steps. Record shows that the complainant is not interested to proceed with the matter. Hence, the matter is dismissed for want of prosecution. Accused is acquitted.”
5. The learned counsel for the appellant submits that the order dated 07/01/2023 ought not to have been passed by the learned Magistrate, as the appellant was regularly prosecuting and attending the Court. However, the matter was referred to the Lok Adalat to explore the possibilities of settlement between the parties. He further submits that since no settlement was arrived between the parties, the case was fixed for filing of the affidavit of evidence of the complainant on 21/07/2022. However, only on two occasions, the affidavit of complainant could not be filed. On 23/11/2022 and 13/12/2022, though the appellant and his counsel were present in the Court, but the Presiding Officer was on leave on both dates. He further submits that on 13/12/2022, a request was made to the concerned clerk of the Court to fix the matter on 13/01/2023, however, inadvertently, the clerk listed the matter on 05/01/2023. The learned counsel appearing in the matter remained under the impression that the next date was 13/01/2023, and ther
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