VASUDEO JADHAV Vs. M G CONSTRUCTIONS

JUDGEMENT

(1.) HEARD the learned Counsel appearing on behalf of the Applicant. None appears on behalf of the Respondents, though they were served. The Applicant has filed affidavit of service.

(2.) THE Applicant is challenging the order passed by the 9th Joint Judicial Magistrate, First Class, Pune, who by his order dated 15.4.2008 was pleased to dismiss the complaint filed by the Complainant under section 138 of the Negotiable Instruments Act. The learned Magistrate was pleased to dismiss the complaint under section 256 of Cr.P.C. The learned Magistrate has observed that the Complainant did not take steps for securing presence of the accused.

(3.) PERUSAL of the Roznama indicates that the observation made by the learned Magistrate is incorrect. Since immediate steps were taken by the Complainant to secure the summons of the court and, thereafter the complaint was dismissed after two dates. The Apex Court in catena of cases has observed that the discretion vested in the Trial Court of dismissing the complaint under section 256 of Cr.P.C. has to be exercised in a judicious manner. The impugned order indicates that the said discretion has not been properly exercised by the learned Magistrate and opportunity ought to have been given to the Complainant to serve the summons which was already issued by the Court. Roznama does not indicate that the Applicant was not diligent in taking steps to serve the Respondents. When notice was issued by this Court on 14th October, 2008, a direction was given that the notice should state that the appeal itself would be finally disposed of at the stage of admission.