Allowed¶22

Shrimati Aasha Madhukar Patil v. Anandrao Shripati Patil and Anr.

Bombay HC26 Sept 2024ALP/395/2014

Case brief

AI extract

What is this about?

Aasha Madhukar Patil vs Anandrao Shripati Patil; Bombay High Court Criminal Application No. 395 of 2014; leave to file appeal under s. 378(4) CrPC; complaint u/s 138 Negotiable Instruments Act dismissed for default u/s. 256 CrPC; S.C.C. No. 748 of 2010; JMFC Sangli; impugned order 13 December 2013; transfer to Lok Adalat; s. 313 CrPC stage reached; ex parte absence of accused despite service; restoration of dismissed complaint; M. M. Sathaye; decided 26 September 2024; appeal allowed, order set aside.

What did the court decide?

Leave to file appeal under s. 378(4) Cr.P.C. granted; appeal allowed; impugned dismissal order dated 13 December 2013 set aside; S.C.C. No. 748 of 2010 restored to the file of the Judicial Magistrate First Class, Sangli for hearing in accordance with law. ¶22

Shrimati Aasha Madhukar Patil Vs Anandrao Shripati Patil and… — Cheque Dishonour | Bombay HC (2024)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the Applicant/original complainant should be granted leave under s. 378(4) Cr.P.C. to appeal against the dismissal-for-default of her s. 138 N.I. Act complaint (S.C.C. No. 748 of 2010), and whether the impugned dismissal order needs interference.

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Ratio / Principle

Considering that the Respondent/Accused chose not to appear despite service, leaving the Applicant's case uncontroverted, and the earlier order dated 2 July 2018 indicating the matter should be finally heard instead of granting leave, the Court held that an arguable case is made out and the impugned order needs interference in the interest of justice.

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Key takeaways

The Application is allowed in terms of clause (a) and (b); leave to file appeal is granted and the appeal is allowed.ratio¶22
The impugned order is set aside and the proceeding of S.C.C. No. 748 of 2010 is restored to the file of the Judicial Magistrate First Class, Sangli for hearing in accordance with law.ratio¶22

Detailed headnote1 paragraphs

Bombay High Court, Criminal Appellate Jurisdiction (M. M. Sathaye, J., 26 September 2024) — Criminal Application No. 395 of 2014 under s. 378(4) Cr.P.C. by Shrimati Aasha Madhukar Patil, the original complainant, seeking leave to appeal against the order dated 13 December 2013 of the Judicial Magistrate First Class, Sangli dismissing for default (u/s. 256 Cr.P.C.) her complaint u/s 138 N.I. Act in S.C.C. No. 748 of 2010. The Accused, though duly served after notice for final disposal dated 2 July 2018, did not appear, leaving the case uncontroverted; the Rozanama showed the complainant and her Advocate actively prosecuting up to the s. 313 Cr.P.C. stage (listed March-August 2013), and counsel submitted the complaint was dismissed after return from Lok Adalat. Holding an arguable case made out, the Court granted leave, allowed the appeal, set aside the impugned order, and restored S.C.C. No. 748 of 2010 to the file of the JMFC, Sangli for hearing in accordance with law. No monetary quantum involved; no precedents cited.

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Digitally signed ANANT by ANANTKRISHNA NAIK KRISHNA Date: NAIK 2024.09.2616:43:20 +0530

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8.ALP.395.2014 .doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPLICATION NO. 395 OF 2014

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Shrimati Aasha Madhukar Patil ... Applicant V/s. Anandrao Shripati Patil & Anr. ... Respondents

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****

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Ms Bhavika Shinde i/b. Mr. Umesh Mankapure for the Applicant. Ms P. N. Dabhokar, APP for the Respondent State.

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CORAM : M. M. SATHAYE, J.

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DATED : 26 SEPTEMBER 2024

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P.C.:

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Heard learned Counsel for the Applicant/Original Complainant. None appears for the Respondent No. 1/Accused though duly served. Record indicates that notice for final disposal was given under order dated 2 July 2018 and thereafter the Respondent No. 1-Accused has been duly served.

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This is an Application u/s. 378(4) of the Code of Criminal Procedure, 1973 (“the Cr.P.C” for short) seeking leave to file Appeal against the impugned order dated 13 December 2013 passed by learned Judicial Magistrate First Class, Sangli in S.C.C. No. 748 of 2010, by which the complainant filed u/s 138 of the Negotiable Instruments Act, 1881 (for short “N.I. Act”) was dismissed for default u/s. 256 of the Cr.P.C.

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8.ALP.395.2014 .doc

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Learned Counsel for the Applicant has taken me through the Rozanama of the case and submitted that the Applicant was diligently prosecuting the complaint and the matter had reached the stage of recording the statement of the accused u/s. 313 of the Cr.P.C. Perusal of the Rozanama shows that both the Complainant and his Advocate were prosecuting the complaint and the matter is shown to have listed for hearing since March 2013 till August 2013. In between these dates, sometime when the Claimant was not present, the Advocate was shown to be present.

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Learned Counsel for the Applicant further submits that the complaint was transferred to Lok Adalat for exploring possibility of resolution of dispute. However, after Lok Adalat, it was dismissed when it appeared for the first time in the regular course. She submits that in such a situation, opportunity should have been given instead of dismissing the complaint for default. A specific ground is taken in the Application to that effect.

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Considering that the Respondent/Accused has chosen not to appear despite service, case of the Applicant is uncontroverted. Considering the earlier order dated 2 July 2018, passed by this court indicating that the matter should be finally heard instead of granting leave, in my view, arguable case is made out and impugned order needs interference in the interest of justice.

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8.ALP.395.2014 .doc

In light thereof, the Application is allowed in terms of clause (a) and (b). Leave to file appeal is granted. Appeal is allowed. Impugned Order is set aside and the proceeding of S.C.C. No. 748 of 2010 is restored to the file of the Judicial Magistrate First Class, Sangli for hearing in accordance with law. 7. All concerned to act on duly authenticated or digitally signed copy of

this order.

(M. M. SATHAYE, J.)

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Shrimati Aasha Madhukar Patil v. Anandrao Shripati Patil and Anr.

Case brief

What is this about?

What did the court decide?

Shrimati Aasha Madhukar Patil v. Anandrao Shripati Patil and Anr.

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

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