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Judgment
A.P. Lavande, J.—Heard Mr. D. Gaonkar, the learned Counsel for the applicant/ appellant, Mr. A. D. Bhobe, the learned Counsel for the respondent No. 1 and Mr. C. A. Ferreira, the learned Public Prosecutor for the respondent No. 2.
Special Leave to appeal against the order dated 26.11.2008 by the Judicial Magistrate, First Class, Bicholim in Criminal Case No. 144/OA/138/2006/B is granted and the appeal is ordered to be registered.
With the consent of the learned Counsel for the parties, the appeal is taken up for final hearing.
The applicant is the complainant in Criminal Case No. 144/OA/138/2006/B filed before the Judicial Magistrate, First Class, Bicholim against the respondent No. 1. The complaint was filed for dishonour of cheque alleged to have been issued by the respondent No. 1 for the sum of Rs. 30,000/-. After examining the complainant, the learned Magistrate issued process against the respondent No. 1 u/s 138 of Negotiable Instruments Act for the offence punishable u/s 138 of Negotiable Instruments Act. The respondent No. 1 was served and the matter was adjourned on several occasions for different reasons. After the matter came up for evidence of the complainant, the complainant sought seven adjournments and they were granted. When the matter came up on 26.11.2008, again an application for exemption of the complainant and adjournment was filed by the complainant, which was dismissed by the learned Magistrate and consequently, the respondent No. 1 was acquitted of the offence punishable u/s 138 of the Negotiable Instruments Act in terms of Section 256 of Criminal Procedure Code.
Aggrieved by the said order, the applicant has filed the present application for special leave to appeal/ appeal.
Mr. Gaonkar, the learned Counsel appearing for the applicant/ complainant, submitted that on 26.11.2008, the complainant could not remain present on account of some urgent business work and, therefore, application seeking exemption and adjournment was filed, which the learned Magistrate rejected and consequently, acquitted the accused, which has caused serious prejudice to the complainant. He further submitted that by the impugned order, the complainant has been deprived of his right to prove the case against the accused/ respondent No. 1 and, therefore, the impugned order be set aside by imposing appropriate costs.
Mr. Bhobe, the learned Counsel appearing for the respondent No. 1/accused, submitted that the conduct of the complainant does not deserve any leniency from this Court and the learned Magistrate was justified in refusing the adjournment to the complainant since the complainant had sought adjournment on several occasions when the matter came up for recording evidence of the complainant. He, therefore, submitted that no cause has been made out for interference by this Court.
I have considered the submissions made by the the learned Counsel for the parties and perused record. No doubt, the record discloses that the complainant / applicant had sought several adjournments when the matter came up for recording evidence of the complainant. However, the fact remains that by the impugned order, the applicant has been deprived of his right to prove the case against the accused in the case arising under Negotiable Instruments Act. In my considered opinion, the impugned order deserves to be quashed and set aside by suitably compensating the respondent No. 1.
In the result, therefore, the impugned order dated 26.11.2008 dismissing the complaint and acquitting the accused/ the respondent No. 1, is quashed and set aside and the matter is remanded to the learned Judicial Magistrate, First Class, Bicholim for disposal of the case in accordance with law subject to the applicant paying the costs of Rs. 10,000/-to the respondent No. 1 within a period of four weeks. The applicant shall deposit the costs in the Court of J.M.F.C., Bicholim within four weeks. Liberty to the respondent No. 1 to withdraw the amount after it is deposited. It is made clear that in case, the costs are not deposited within four weeks, this order shall stand recalled and the order passed by the Magistrate on 26.11.2008, shall stand revived.
The application and appeal are disposed of in aforesaid terms.