PUNJABAI D/O. TRIMBAK DIVEKAR Vs. NAVNATH BANSI LOHARE & ORS.
HIGH COURT OF BOMBAY (AT: AURANGABAD)
Punjabai D/O. Trimbak Divekar
Navnath Bansi Lohare And Ors.
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(1.) By the present appeal, the appellant original complainant has challenged the impugned order dated 11.12.2015 passed in Sum. Criminal Case No. 431/2011 by the J.M.F.C Paithan Dist. Aurangabad. By the impugned order the learned judge has dismissed the complaint and acquitted the accused by exercising powers under section 256 of the Code of Criminal Procedure.
(2.) Before adverting to appreciate the submissions advanced, it is necessary to consider the brief fact leading to filing of this appeal. The complainant had filed Criminal complaint under section 323,504,506 r.w. 34 of the Indian Penal Code as against the respondents/accused. On due consideration of the allegations made in the complaint and verification of the complainant the learned Judicial Magistrate First Class, Paithan pleased to issue process under section 323,504,506 r.w. 34 of the Indian Penal Code vide order dated 09.11.2011. Pursuant to the order passed the summons were issued and accused appeared in the matter. Since thereafter the case was adjourned for one or the other reasons. On 11.12.2015 the learned Magistrate passed the following order and dismissed the complaint. The impugned order reads as under :- "Complainant and his counsel absent when called out repeatedly. Peruse record and roznama it appears that complainant is absent since long and has not taken steps in order to proceed with the matter. More than sufficient time is given to complainant to take steps. The matter is old one. There is no point in keeping the matter pending without any further progress. Hence, in view of all above aspect the complaint is dismissed under section 256 of Code of Criminal Procedure. The accused is acquitted of the offence punishable under section 138 of Negotiable Instrument Act. His bail bonds stands canceled and surety is discharged. The proceeding is hereby closed."
(3.) The appellant has challenged the impugned order mainly on the ground that, order passed is glaring example for non application of the mind. It is pointed out that, the complaint filed by the complainant was for seeking prosecution and conviction of the accused for committing an offence punishable under section 323, 504,506 r.w. 34 of the Indian Penal Code. While passing the impugned order the learned Magistrate treated the complaint as it was filed under section 138 of the Negotiable Instrument Act and dismissed the complaint by making another observations to that effect.;
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