Mohammed Yusuf Khan S/O. Mohd. Mahemud Khan v. Mir Irshad Ali S/O. Mahemud Ali

2024:BHC-AUG:12843 1 922-ALP-53-24.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD APPLICATION FOR LEAVE TO APPEAL BY PRIVATE PARTY NO.53 OF 2024 MOHAMMED YUSUF KHAN S/O. MOHD. MAHEMUD KHAN

VERSUS

MIR IRSHAD ALI S/O. MAHEMUD ALI ...

Mr. Tarek Mobin H. Shaikh , Advocate for Appellant Mr. Ahmedulla Mohammad Waweemulla, Advocate for Respondent ...

CORAM : NITIN B. SURYAWANSHI, J.

DATE : 02nd JULY, 2024 PER COURT :

1.

By this application filed under Section 378(4) of the Code of Criminal Procedure, applicant seeks leave to file criminal appeal against order of acquittal dated 16/12/2023, passed by learned 5th Judicial Magistrate First Class, Beed, in S.C.C. No.513/2019, thereby dismissing complaint filed by applicant/complainant under Section 138 of the Negotiable Instruments Act, for want of prosecution.

2.

Applicant filed complaint against respondent for dishonour of cheque of Rs.14,00,000/-, on 23/04/2019. Thereafter the matter was adjourned from time to time for appearance of respondent. Roznama dated 15/11/2022 shows that summons was served on respondent, however, he remained absent. The matter was then adjourned to 26/12/2022. Roznama dated 26/12/2022 shows that complainant was absent but his lawyer was present and

2 922-ALP-53-24.odt the matter was adjourned for compliance. On 17/01/2023 complainant and his lawyer both were absent and the matter was adjourned for compliance to 20/02/2023. On 20/02/2023 also complainant and his lawyer were absent and the matter was adjourned for compliance to 04/04/2023. As public holiday was declared on 04/04/2023, matter was adjourned to 17/06/2023. On that date, complainant was absent but his lawyer was present and the matter was adjourned for compliance to 26/07/2023. On that date also complainant was absent and his lawyer was present and matter was adjourned for compliance to 23/08/2023. On that date, complainant and his lawyer both were absent. The matter was then adjourned to 09/11/2023 and on that date complainant was absent and hence, the matter was kept for dismissal. Ultimately on 16/12/2023 since complainant and his lawyer both were absent in spite of repeated calling, complaint was dismissed. The proceeding was stopped under Section 256 of Cr.P.C. and respondent / accused was acquitted. Hence, this Application for Leave to Appeal. 3.

Heard learned advocate for applicant / complainant and learned advocate for respondent/accused. Perused the documents placed on record.

4.

It is a matter of record that respondent / accused did not cause his appearance though summons was served on him. Learned advocate for accused submits that major part of the

3 922-ALP-53-24.odt cheque amount was already paid by accused to complainant /applicant and that is why complainant was not taking effective steps. There is no merit in the said submission in as much as though summons was served on respondent / accused, he has not caused his appearance in the matter.

5.

On most of the dates either complainant or his lawyer seems to be present. The cheque is of Rs.14,00,000/- and fair opportunity needs to be given to complainant to prosecute his case. In that view of the matter, I am inclined to allow the application. 6.

In the result, following order:-

O R D E R

(I) Application is allowed.

(II) Applicant is granted leave to file appeal challenging order dated 16/12/2023, passed by learned 5th Judicial Magistrate First Class, Beed, in S.C.C. No.513/2019.

(III) Appeal be registered.

(IV) List the Appeal for further consideration in the next week. (NITIN B. SURYAWANSHI, J.)