Case Law Details
Jaikiran Prabhaji Nagari Sahakari Vs Santosh Chudaman Patil (Bombay High Court)
In a significant decision, the Bombay High Court granted leave to file an appeal in the case of Jaikiran Prabhaji Nagari Sahakari Vs. Santosh Chudaman Patil. This case revolves around proceedings under Section 138 of the Negotiable Instruments Act, 1881, which deals with the dishonor of cheques. The appeal arises from a complaint that was dismissed due to the complainant’s absence on a single court date, resulting in the acquittal of the accused. This article delves into the details of the case, the arguments presented, and the court’s rationale in granting the leave to appeal.
Background of the Case
The original complaint was initiated by Jaikiran Prabhaji Nagari Sahakari, a credit society, under Section 138 of the Negotiable Instruments Act. The case involved a loan transaction where the accused, Santosh Chudaman Patil, issued a cheque for Rs. 30,000 as repayment. However, the cheque was dishonored, prompting the complainant to send a legal notice. When the amount remained unpaid, the credit society filed a complaint on February 5, 2015.
Dismissal of the Complaint
The proceedings were carried out in the court of the Judicial Magistrate First Class, Pachora. The complainant was present in court on multiple occasions, including June 28, 2018, August 6, 2018, August 30, 2018, and September 8, 2018. Despite this, the complaint was dismissed on September 24, 2018, due to the complainant’s absence. The absence was attributed to the authorized representative needing to attend a tax audit for the society.
Application for Restoration
On the same day as the dismissal, the complainant filed an application for restoration of the complaint, which was rejected by the Judicial Magistrate. This led to the filing of a leave application in the Bombay High Court, seeking permission to appeal against the dismissal order.
Proceedings in the High Court
The High Court proceedings began with a notice issued on February 8, 2019. The respondent, represented by Advocate Mr. J. M. Wagh, did not make an appearance despite sufficient notice. This non-appearance played a role in the High Court’s decision to grant leave for appeal. The court examined the “roznama” (daily order sheet) and noted the consistent presence of the complainant on previous dates, deeming the dismissal due to a single absence as unjust.
Arguments Presented
The advocate for the complainant argued that the dismissal for want of prosecution on a single date was harsh and unjust, given the merits of the case. It was emphasized that the absence was not due to negligence but due to unavoidable circumstances related to the society’s tax audit. The advocate highlighted the importance of providing a fair opportunity to contest the proceedings, which was denied due to the dismissal.
Court’s Decision
After considering the arguments and reviewing the case records, the High Court found that a fair opportunity was indeed warranted. The court noted that the complainant had a legitimate reason for the absence and had shown due diligence in attending prior hearings and immediately filing for restoration. As a result, the court granted the leave application, allowing the appeal to proceed.
FULL TEXT OF THE JUDGMENT/ORDER OF BOMBAY HIGH COURT
1. This leave application is at the instance of original complainant, who had initiated proceedings under section 138 of the Negotiable Instruments Act, 1881, seeking leave to file appeal against order of dismissal in default passed by learned Judicial Magistrate First Class, Pachora dated 24.09.2018 in S.C.C. No. 79 of 2015, resulting into acquittal of respondent accused.
2. Learned Advocate for applicant submitted that, there was loan transaction to the tune of Rs.30,000/-. Cheque towards repayment was issued by accused, however it was returned dishonored and after legal notice, when amount was not paid, proceedings under section 138 of Negotiable Instruments Act, 1881 (N.I. Act) were instituted on 05.02.2015. However, merely on account of absence on only one date, learned trial court has dismissed the complaint for want of prosecution. He pointed out that, there is a good case on merits. However, due to dismissal for want of prosecution, complainant – applicant has suffered injustice and so he seeks relief as prayed.
3. On 08.02.2019, this Court had issued notice to On 08.03.2019, learned Advocate Mr. J. M. Wagh (Patil) appeared on behalf of respondent and on 18.01.2024, on his request his appearance was discharged. On 18.01.2024, this court again issued notice to respondent and the same is duly served on him 31.01.2024. However, none appeared for respondent, in spite of sufficient chance.
4. Heard. Perused roznama. It seems that, proceedings under section 138 of N.I. Act bearing S.C.C. No. 79 of 2015 was instituted. It seems that, learned trial court had issued process on 06.02.2015. Thereafter, original complainant is shown to be present on 28.06.2018, 06.08.2018, 30.08.2018 and 08.09.2018.However, in view of absence of complainant only on 24.09.2018, complaint seems to have been dismissed for want of prosecution. Learned Advocate for the applicant submits that, on 24.09.2018, the person authorized to represent the applicant credit society, though was present before the court in the first half, due to ongoing tax audit of the applicant society, was constrained to leave the court during second half. Record shows that, same day i.e. on 24.09.2018, original complainant had also filed application for restoration of complaint, however the same seems to have been rejected by learned Judicial Magistrate First Class, Pachora.
5. Considering the above discussed material and in view of a fair opportunity to contest the proceedings, leave deserves to be granted. Hence, I proceed to pass the following order :-
ORDER
(i) Application stands allowed.
(ii) Leave is granted to file Appeal.
(iii) Registry to register the Appeal.
(iv) List the appeal for further consideration on 20.06.2024.
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