JITENDRA S BAFNA Vs. BABAN RAMCHANDRA SONAWANE

JUDGEMENT

(1.) HEARD learned advocate for the applicant and the learned advocate for the 1st respondent. The advocate for the 1st respondent on instructions states that the 1st respondent is not agreeable to settle the dispute in terms of the joint application submitted by the applicant and the 1st respondent before the trial Court on 26th February 2008.

(2.) BY order dated 25th February 2009, this Court recorded that if there is no settlement between the parties, leave will have to be granted and the appeal will have to be finally decided at admission stage. Accordingly, leave is granted and the appeal is taken up for final disposal. The applicant filed a complaint against the 1st respondent alleging commission of an offence under section 138 of the Negotiable Instruments Act, 1881. On 29th May 2006 the applicant filed affidavit in lieu of examination in chief and the cross examination of the applicant commenced on 14th February 2008. On 26th February 2008 a joint application was submitted by the applicant and the 1st respondent recording that the parties have mutually agreed to settle the matter. The 1st respondent agreed to pay certain amount by 30th April 2008 and the balance amount by 17th May 2008. Thereafter it appears that the complaint was kept on 26th March and 27th March 2008. By order dated 29th April 2008, the 1st respondent was acquitted by the learned Magistrate in exercise of powers under section 256 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the said Code). The learned Judge noted that after joint application was filed, on 26th March 2008, 27th March 2008 and on the day of passing the impugned order, the applicant did not appear and did not offer himself for cross-examination.

(3.) I have carefully considered the submissions. The impugned order itself records that affidavit in lieu of examination in chief was filed by the applicant on 29th May 2006. The cross-examination of the applicant commenced on 14th February 2008. It is not recorded by the learned trial Judge that case was delayed on account of any lapse on the part of the applicant. On 14th February 2008, the case was adjourned to 26th February 2008. On that day parties submitted a joint application which reads thus: