Sheikh Chhotu s/o Sheikh Hasan vs Ahemad Khan s/o Gul Khan

Challenge is to the order dated 06.01.2014 rendered

by the Judicial Magistrate First Class, Court 5, Akola in Summary

Criminal Case 312/2011, by and under which, the complaint

instituted under Section 138 of the Negotiable Instruments Act,

1881 (''Act'' for short) is dismissed under Section 256 of the

Criminal Procedure Code.

Heard Shri A.J. Mirza, the learned counsel for the

appellant and Shri V.B. Bhise, the learned counsel for the

respondent.

The learned counsel for the complainant invites my

attention to the order-sheet. The order-sheet reveals that the

dispute was referred for mediation and report awaited.

The order-sheet dated 15.11.2013 records that the matter is fixed

on 10.12.2013 for the report of the mediator.

Perusal of the order impugned would reveal that the

report was received by the learned Magistrate after 15.11.2013

and before 10.12.2013. It is in view of the receipt of the report

that on 10.12.2013 the Summary Criminal Case was fixed on

02.01.2014 for dismissal. This order was presumably made since

neither the counsel for the complainant nor the counsel for the

accused attended the court.

Again, on 02.01.2014 neither the counsel for the

complainant nor the counsel for the accused attended the court

and the complaint was fixed on 06.01.2014 for dismissal, and is

accordingly dismissed by order dated 06.01.2014.

The learned counsel for the appellant would submit

that during the pendency of the proceedings before the mediator

the complainant fell ill and was receiving treatment of Dr. Imran

Ahemad who advised him bed rest. The medical papers are filed

along with the memo of appeal. The complainant, due to his

illness could not contact the lawyer, is the submission.

The Advocate presumably did not attend the court on the two

relevant dates under the impression that the report of the

mediator is awaited.

Shri Bhise, the learned counsel for the respondent

opposes the submissions on behalf of the complainant. He invites

my attention to the fact that even the mediation failed since the

accused parties chose not to appear before the learned mediator.

Be that as it may, on perusal of the order-sheet and

the medical papers, I am of the opinion that it would be

appropriate if the order impugned is set aside and the criminal

complaint decided on merits.

In the result, the order impugned is set aside.

The learned Magistrate is requested to finally decide

the complaint within six months of the receipt of record and

proceedings.

The counsel for the complainant states that no

adjournment shall be sought on behalf of the complainant.

Needless to say that the learned Magistrate would be expected not

to grant any adjournment either the complainant or the accused,

unless exceptional grounds are made out.

On receipt of the record and proceedings the learned

Magistrate shall issue fresh notice to the parties.

The appeal is partly allowed in the above terms.