M/S Shivani Traders Thr. Its Proprietor Arun Chandrabhanji Ladhi v. A.K.Corporation Thr. Its Proprietor Ashokkumar Basudeoji Saraf

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

CRIMINAL APPLICATION (APL) NO.

OF 20 M/s Shivani Traders, through its Proprietor Arun Chandrabhanji Ladhi, aged about 45 years, Occupation - Business, R/o Shastry Ward, Hinganghat, Tah. Hinganghat, District - Wardha.

... APPLICANT

VERSUS

A.K. Corporation, through its Proprietor, Ashokkumar Basudeoji Sarar, aged about 59 years, occupation - Business, R/o Saraf Bhavan, Shiv Nagar, Wardha, Tah. And District - Wardha.

... ..NON-APPLICANT _____________________________________________________________ Shri A.S. Dhore, Advocate for the applicant.

Shri Nitin Lalwani, Advocate for the non-applicant. ______________________________________________________________

CORAM

:

VINAY JOSHI, J.

D ATED.

:

10.08.2022.

ORAL

JUDGMENT

:

Heard. ADMIT. The matter is taken up for final hearing by consent of both parties.

2.

The applicant who is convicted in Summary Criminal Case No.3315 of 2013 for the offence punishable under Sections 138 of the Negotiable Instruments Act, has preferred an appeal challenging the conviction, however the appeal was dismissed in default, hence the parties are before this Court.

3.

As regards to the facts are concerned, there is no dispute as the appeal against the conviction came to be dismissed in default, which is also reflected in the impugned order dated 22.06.2022. The learned Counsel appearing for the non-applicant (original complainant) conceded the legal position that the appeal against conviction cannot be dismissed in default. Obviously, if the applicant remaines absent, the learned Trial Judge ought to have taken coercive steps or appointed amicus curiae or would have disposed the appeal on its own merits. Therefore, it is but necessary, to set aside the impugned order and direct the learned Appellate Court to decide the appeal afresh as permissible in law.

4.

The learned Counsel appearing for the applicant undertakes to appear and proceed with the appeal on the given date. 5.

In view of that application is allowed. The impugned order dated 22.06.2022 passed in Criminal Appeal No.94 of 2015 is hereby quashed and set aside. The Criminal Appeal is restored on the file of the Appellate Court. Both parties undertake to appear before the Appellate Court on 07.09.2022, without any notice. The applicant shall go on with the appeal on 07.09.2022 or within the next date which would be fixed by the Appellate Court. The Appellate Court is directed to decide the appeal within three months from 07.09.2022. 6.

The application stands disposed of in above terms. (VINAY JOSHI, J.) Trupti TRUPTI SANTOSHJI AGRAWAL 12.08.2022 16:23