Bombay High Court
JAYCHEMIEversusSHITAL GOPAL PANCHAL AND ANR.
- Decided
- Disposal
- Allowed
- Bench
- N R BORKAR
Holding
The appellate court held that the dismissal was erroneous due to factual inaccuracy and set aside the order, restoring the case for trial.
Summary
The appellant, M/s. Jaychemie, appealed against the Metropolitan Magistrate’s order dismissing a complaint under Section 138 of the Negotiable Instruments Act, 1881, for want of prosecution and acquitting Respondent No.1. The appellant contended that both he and his counsel had attended every hearing except the one on which the complaint was dismissed, contrary to the magistrate’s finding of their absence. The appellate court examined the trial court’s Roznama, which showed the appellant’s presence, and found the magistrate’s order to be a factual error and a rubber‑stamp dismissal. Consequently, the court set aside the impugned order, restored the criminal case file, and directed that the matter be decided on its merits. The appeal was allowed and the case remitted to the trial court for proper adjudication.
Issues considered
- What is the correct basis for dismissing a complaint under Section 138 of the Negotiable Instruments Act for want of prosecution?
- Whether the magistrate’s finding of the complainant’s and counsel’s absence was accurate and sufficient to justify dismissal.
Legislation cited
- Negotiable Instruments Act, 1881 — s. 138
Subjects
- Section 138 NI Act
- complaint dismissal
- want of prosecution
- appellate jurisdiction
- criminal procedure
Judgment
1 901-APEAL 632-26.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.632 OF 2026
M/s. Jaychemie … Appellant
Vs.
Shital Gopal Panchal & Anr. … Respondents
-----
Mr. Yashpal Maheshchandra Thakur for the Appellant.
None for Respondent No.1.
Mr. V. N. Sagare, APP for Respondent No.2-State.
-----
CORAM : N.R. BORKAR, J.
DATE : 31ST JULY 2026
Digitally
P.C. :
signed by
MUGDHA
MUGDHA MANOJ
MANOJ PARANJAPE
PARANJAPE Date:
2026.07.31
15:07:23
+0530
1. This Appeal takes exception to the order dated 25 th July 2018
passed by the Metropolitan Magistrate, Ballard Pier, Mumbai in C. C.
No.2587/SS/2017.
2. The Appellant herein had filed the complaint case against
Respondent No.1 for the offence punishable under Section 138 of the
Negotiable Instruments Act, 1881.
3. By the order impugned, the Learned Metropolitan Magistrate has
dismissed the complaint for want of prosecution and acquitted Respondent
No.1.
4. I have heard Learned Counsel for the Appellant. None appears for
Respondent No.1.
Mugdha 1 of 2
2 901-APEAL 632-26.doc
5. Learned Counsel for the Appellant submits that the Appellant-
original complainant and his advocate were present on each and every
date before the trial court, except the date on which the complaint came
to be dismissed. It is submitted that the Learned Metropolitan Magistrate
has dismissed the complaint despite the report in respect of the summons
issued to Respondent No.1 was awaited. In support of the said submission,
Learned Counsel for the Appellant has drawn my attention to the
Roznama of the trial court.
6. I have perused the impugned order. It’s a rubber stamp order.
Though the Roznama shows that the Appellant-original complainant and
his advocate were present on each and every date except the date on
which the Learned Metropolitan Magistrate has dismissed the complaint,
still the order impugned records that the complainant and his advocate
were absent since long. The order impugned therefore cannot be allowed
to stand. In the result, the following order is passed:-
ORDER
i. The Criminal Appeal is allowed.
ii. The order impugned is set aside.
iii. C.C. No.2587/SS/2017 is restored on the file of the trial
court for deciding it in accordance with the law.
7. The Criminal Appeal is disposed of in the aforesaid terms.
(N.R. BORKAR, J.)
Mugdha 2 of 2
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