The single bench of the Bombay High Court has granted leave to appeal in a cheque dishonor case under the Negotiable Instruments Act, 1881, citing the ongoing tax audit, justified absence, and the merits of the case.
An original complainant has filed for leave to appeal against the dismissal order passed under Section 138 of the Negotiable Instruments Act, 1881. This action follows the acquittal of the respondent accused due to a dismissal in default by the Judicial Magistrate First Class, Pachora, dated 24th September 2018, in S.C.C. No. 79 of 2015.
Mr. Pushkar S. Shendurnikar, representing the applicant presented a case involving a loan transaction amounting to Rs. 30,000. According to the advocate, the accused had issued a cheque to repay the loan, but the cheque was dishonored upon presentation. Subsequently, a legal notice was sent to the accused. When the payment was not made despite the notice, the complainant initiated proceedings under Section 138 of the Negotiable Instruments Act, 1881, on February 5, 2015.
However, the advocate highlighted a significant procedural issue, the complaint was dismissed by the trial court due to the complainant’s absence on a single date. The advocate argued that this dismissal, based solely on the complainant’s absence on that particular date, resulted in a miscarriage of justice. He emphasized that the case has substantial merit and that the complainant has suffered injustice due to the dismissal for want of prosecution. Consequently, the advocate is seeking relief as requested in the original complaint.
On February 8, 2019, the court issued a notice to the respondent. Following this, on March 8, 2019, Advocate Mr. J. M. Wagh (Patil) appeared on behalf of the respondent. However, on January 18, 2024, Mr. Wagh’s request to discharge his appearance was granted. On the same day, the court reissued a notice to the respondent, which was duly served on January 31, 2024. Despite receiving adequate notice and ample opportunity to respond, no representative appeared for the respondent in subsequent hearings.
It was revealed that proceedings under Section 138 of the Negotiable Instruments Act, designated as S.C.C. No. 79 of 2015, were initiated. The trial court issued the process on February 6, 2015. Subsequent appearances by the original complainant were noted on June 28, 2018, August 6, 2018, August 30, 2018, and September 8, 2018. However, due to the complainant’s absence on September 24, 2018, the complaint was dismissed for lack of prosecution.
The applicant’s lawyer explained that on September 24, 2018, the authorized representative of the applicant credit society was present in court during the first half. However, he had to leave during the second half because of the society’s ongoing tax audit. Records also show that on the same day, the original complainant filed an application to restore the complaint, which was subsequently rejected by the Judicial Magistrate First Class in Pachora.
The bench led by Justice Abhay S. Waghwase has ruled that leave should be granted, ensuring a fair opportunity to contest the proceedings. Accordingly, application stands allowed, leave was granted to file Appeal.
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