Shabu Bhimappa Dudhale vs. Vinayak Appasaheb Padavle

Order - Status 6: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.16 OF 2015 ..... Shabu Bhimappa Dudhale ..Appellant. versus Vinayak Appasaheb Padavle and another ..Respondents. ..... Mr. Anand S. Patil for the Appellant. Smt. V.R. Bhosale , Addl.P.P. for the State. CORAM : A.S. GADKARI, J. 3rd July, 2015. P.C. : The Appellant to remove the office objections within a period of three weeks from today. Stand over to 24th July, 2015. (A.S. Gadkari, J.)

Order - Status 8: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 16 OF 2015 Shabu Bhimappa Dudhale ...Appellant vs. Vinayak Appasaheb Padavale and Anr. ...Respondents ***** None for the Appellant Mr. N. B. Patil - APP for the Respondent-State ***** CORAM : S. M. MODAK, J. DATE : 02nd FEBRUARY, 2023 P. C. :- None present for the contesting parties, even though matter is fixed for final hearing. Matter be kept on 09th March, 2023 under the caption 'for direction'. [S. M. MODAK, J.]

Order - Status 10: SATISH RAMCHANDRA SANGAR Digitally signed by SATISH RAMCHANDRA SANGAR Date: 2023.03.13 14:28:18 +0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 16 OF 2015 Shabu Bhimappa Dudhale ...Appellant vs. Vinayak Appasaheb Padavale and Anr. ...Respondents ***** Mr.Sandip Kagade i/b. Mr.Anand Patil, Advocate for Appellant. Mr.H.J.Dedhia – APP for the Respondent No.2-State. ***** CORAM : S. M. MODAK, J. DATE : th 9 MARCH, 2023 P. C. :- Learned Advocate Shri.Anand Patil is busy before some other Court. The Court of JMFC has acquitted the Accused by invoking the powers of Section 256 of the Code of Criminal Procedure, 1973 ["Cr.P.C."] as per the order dated 26th December, 2012. It is for not taking steps by the Complainant. Matter be kept on 16th March, 2023. [S. M. MODAK, J.]

Order - Status 12: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 16 OF 2015 Shabu Bhimappa Dudhale ...Appellant vs. Vinayak Appasaheb Padavle and Anr. ...Respondents ***** Mr. S. R. Ghanavat i/by Mr. Anand S. Patil - Advocate for the Appellant Mr. H. J. Dedhia - APP for the Respondent-State ***** CORAM : S. M. MODAK, J. DATE : 16th MARCH, 2023 P. C. :- As learned Advocate Shri Anand S. Patil is busy before some other Court, adjournment is sought. Matter be kept on 18th April, 2023. [S. M. MODAK, J.]

Order - Status 15: Tauseef 12-APEAL.16.2015.doc Digitally Date: 2023.04.25 12:10:14 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.16 OF 2015 Shabu Bhimappa Dudhale …Appellant Versus Vinayak Appasaheb Padavle & Anr. …Respondents Mr. Anand S. Patil for the Appellant. Mr. H. J. Dedhia, APP for the Respondent-State. CORAM : S. M. MODAK, J. DATE : 18th APRIL, 2023 P.C. Mentioned out of turn. Learned Advocate for the Appellant seeks accommodation. The Appeal is already admitted. Matter be kept on 14 th June, 2023. [S. M. MODAK, J.]

Order - Status 17: HEMANT CHANDERSEN SHIV Digitally signed by HEMANT CHANDERSEN SHIV Date: 2023.07.28 00:34:56 +0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.16 OF 2015 Shabu Bhimappa Dudhale Age 56 years, Occupation-Business R/o 2114, "E" Ward, Kawala Naka Kolhapur ...Appellant vs. Vinayak Appasaheb Padavle Age 36 years, Occupation-Business R/o 823, "E" Ward, Line Bazar, Kolhapur … State of Maharashtra …Respondents Mr. Anand S. Patil for the Appellant. Mr. S. R. Agarkar APP for the Respondent-State. CORAM : S. M. MODAK, J. DATED : 18TH JULY 2023 JUDGMENT : Heard learned Advocate for the Appellant-complainant. No one is present on behalf of the Respondent-accused. Issue involved in this Appeal is as under : "Whether power under Section 256 of the Code of Criminal Procedure can be exercised at post evidence stage when accused remained absent ?" 10.a16.2015.odt The appeal was already admitted on 5th December 2014. The action under Section 390 of the Code of Criminal Procedure was also initiated. The Farad Sheet dated 6th June 2023, mentions that Respondent No.1-accused has furnished surety of Rs.10,000/- on 30th June 2015. However, no one has appeared in this Appeal. It is travesty of justice, that appeal involving trifle issue remained pending for eight years. Reasons may be different. Perused the impugned order dated 26th December 2012, passed by 15th Judicial Magistrate, First Class, Kolhapur in Summary Criminal Case No.4161 of 2006. The accused was acquitted for the offence punishable under Section 138 of the N.I. Act by taking recourse to Section 256 of the Code of Criminal Procedure. When this order came to be passed, the matter was fixed for recording statement of the accused under Section 313 of the Code of Criminal Procedure. The complaint was filed in the year 2006 bearing SCC No.4161/06. Roznama indicates accused was in the habit of avoiding process of this Court. The following are the important dates :- January 2007 Process was issued. 17/08/2010 Non bailable warrant issued as accused remained absent. 23/03/2001 Accused produced in execution of Non bailable warrant Application for bail Plea recorded 24/03/2011 Accused released on bail. 30/03/2011 Evidence of complainant. 7/04/2011 No cross order. Close pursis. Adjourned for statement under Section 313 of the Code. 14/07/2011 Non bailable warrant issued 1/02/2012 Cash surety forfeited Issued non bailable warrant. 30/10/2012 Non bailable warrant issued through Superintendent of Police 26/12/2012 Complaint dismissed for want of taking steps. So from events what transpires is as follows :- (a) The complaint is pending since 2006. (b) Accused has no respect for law. (c) He has not responded to Court summons earlier to plea and thereafter also. (d) Trial Court was required to issue non bailable warrant on various occasions. (e) Prior to recording of plea, non bailable warrant was served and Respondent-accused was released on cash bail. (f) Non bailable warrant could not be served even through Superintendent of Police. On this background, the Court of Judicial Magistrate, First Class, 15th Court, Kolhapur passed an order dated 26/12/2012 thereby acquitting the Respondent-accused by taking recourse to the provisions of Section 256 of the Code of Criminal Procedure. The learned Magistrate noted following facts in the order :- (a) The complainant was absent persistently on 15/06/2012, 4/08/2012, 25/09/2012 and on 30/10/2012 (para 2). (b) Report of Superintendent of Police indicates that accused was outside his house (para 3). (c) Complainant has not taken steps under Section 82, 83 of the Code of Criminal Procedure (para 4). Now the question is whether it was appropriate for the learned Magistrate to take recourse to the provisions of Section 256 of the Code of Criminal Procedure. If we read those provisions, we may find the following ingredients :- (a) Case is fixed for hearing. (b) Complainant is absent. (c) His presence is required. (d) Court does not feel it necessary to adjourn the matter. Then only complaint can be dismissed. The Hon'ble Supreme Court in case of Associated Cement Co. Ltd. Vs. Keshvanand 1 , has dealt with this issue. The purpose is to check the dilatory tactics of the complainant, principle of speedy trial is recognised. 9. However, if the entire facts and circumstances of the case are considered, there is reason to believe that the learned Magistrate has hastily passed that order. It is a matter of record that accused has no respect to the law. And on every occasion, the complainant was 1 (1998) 1 SCC 687 10.a16.2015.odt required to take steps. Execution of non bailable warrant is not an easy formality. At the same time, it is also true that unchallenged evidence could not have been used by the trial Court unless it was put to the accused under Section 313 of the Code of Criminal Procedure. At the same time, trial Court ought to have given weightage to the fact that patience of complainant was tested every time. If it is so, the trial Court waited and could have given direction to the complainant to take steps. The judgment of acquittal need not be interfered rightly. But the power under Section 256 of the Code should not be exercised only for the purpose of disposing of the cases. Trial Court has not considered the efforts taken by the complainant every time to secure presence of the complainant. The order deserves to be set aside. Certain directions for speedy disposal are required as the complaint is pending since 2006. Hence, I proceed to pass the following order :- O R D E R (a) The Appeal is allowed. (b) The order passed by the Court of 15th Judicial Magistrate, First Class, Kolhapur dated 26th December 2012, is set aside. Shiv 6/7 The complaint is restored to file. (c) The complainant is directed to appear before the 15th Judicial Magistrate, First Class, Kolhapur on 28th July 2023, at 11 am and is directed to take necessary steps. (d) Once the Respondent appears, the trial Court is directed to keep the matter on day-to-day basis. [S. M. MODAK, J.]