Shiv Pipes Through Its Authorized Parther Avinash Waman Phadke v. Pranav Agencies Through Its Properietor Punjabrao Chavan

2024:BHC-AUG:12359 -1IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 363 OF 2024 SHIV PIPES Through its Authorized Partner AVINASH WAMAN PHADKE Age : 60 Years, Occu: Business, R/o: Plot No. 34, Anand Nagar, Nanded.

... Appellant

Versus

PRANAV AGENCIES Through its Proprietor Punjabrao Chavan Age: Major, Occu: Business, R/o: Main Road, Ardhapur, District Nanded.

... Respondent .....

Mr. Rani Bharuka-Bora, Advocate h/f Mr. Satyajit S. Bora, Advocate for the Appellant.

Mr. J. B. Paikrao, Advocate h/f Mr. Govind G. Suryawanshi, Advocate for the Respondent.

.....

CORAM : ABHAY S. WAGHWASE, J.

DATED : 26th JUNE, 2024.

ORDER :

1.

Heard.

2.

Record shows that initially leave to file appeal was sought by filing application no. 39 of 2024. This Court vide order dated 05.04.2024, allowed the said leave application and directions were

-2issued to register the appeal. Relevant portion in para 5 of the said order reads as under :

"5. Record shows that, learned trial court on 21.04.2018 issued process, thereby issuing summons to the accused. It seems that, on 06.03.2023 finding complainant and his advocate absent, it is ordered that, no effective steps are taken since long and hence matter was posted for dismissal for default on next date. Finally on 29.04.2023 impugned order seems to have been passed by observing that complainant is not interested in proceeding the matter and no steps being taken since long, by invoking powers under section 256 of Cr.P.C., accused came to be discharged. ....."

3.

It can be seen from the roznama that the matter was under await summons category since long time and therefore could not proceed further. Learned counsel for the applicant also assures to be diligent in conducting the matter henceforth. 4.

In view of the above, complainant cannot be deprived of his right to prosecute accused if at all there is case made out to that extent. Resultantly, it would be just and proper to remand the matter back to the learned trial court, who shall afford opportunity to both

-3sides to adduce their respective evidence and come to its independent conclusion. Accordingly, I proceed to pass the following order:

ORDER

I.

The appeal is allowed in terms of prayer clause (b). II.

Parties are directed to appear before the trial court on 11.07.2024 and co-operate in conducting the trial. III.

Learned trial Judge to expedite the hearing of the case by giving opportunity to both sides to adduce evidence, and decide the matter on its own merits.

[ABHAY S. WAGHWASE, J.] Tandale