Shivaji Appaji Kumbhar v. Subhash Kashinath Gaikwad And ANR.

by HEMANT CHANDERSEN SHIV Date:

2023.03.17 12:00:29 +0530 HEMANT CHANDERSEN SHIV 1/2 7.a453.06.doc Shiv

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.453 OF 2006 Shivaji Appaji Kumbhar ...Appellant vs.

Subhash Kashinath Gaikwad & Anr.

...Respondents

Ms. Ruchita Kadam with Bhakh Wast i/b Sanjiv Sawant for the Appellant.

None for Respondent No.1.

Mr. H. J. Dedhia APP for Respondent No.2-State. CORAM : S. M. MODAK, J.

DATED : 15TH MARCH 2023 P. C. :

1.

Respondent No.1-accused has expired on 8th January 2012. It is noted down in the order dated 27th January 2023, and on 3rd March 2023. In view of above, the Appeal cannot proceed in view of the provisions of section 394 of the Code of Criminal Procedure. So the Appeal will stand dismissed as abated.

2.

There is request to grant liberty to the Appellant to initiate civil suit for recovery of the amount against legal representatives of deceased Respondent No.1. In support of that reliance is placed on the judgment in case of Rajesh Madanlal Anand Vs. Rakesh Madanlal Anand and Anr.

1 This judgment was delivered when the trial Court refused to consider the suit filed on the basis of cheque in question 2018 SCC Online J & K 572

2/2 7.a453.06.doc under the provisions of Order 37 of the Code of Civil Procedure but it was considered as a regular suit. The High Court of Jammu and Kashmir has directed to treat the suit as summary suit only. Para 9 mentions that there was a complaint filed under section 138 of NI Act and that criminal complaint was closed in view of death of accusedSmt.Swaraj Madanlal Anand, whereas the suit was filed against his LRs. The issue involved in that matter was whether the summary suit on the basis of cheque is maintainable against LRs of the deceased drawer. It was held maintainable.

3.

I am afraid that this Court can make certain observations about maintainability of the suit. At the most the Appellant can show those observations to the Court before whom, the Appellant will file the Civil suit.

4.

With these observations this Appeal is disposed of as abated. [S. M. MODAK, J.]