1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRIMINAL APPLICATION NO. 355 OF 2009 IN CRIMINAL APPEAL NO. 59/2009 (Govind Narayan Gattani .v. Dilip Balkrishna Admane) Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. Shri A.R. Patil, Advocate for the applicant. CORAM : A.P. BHANGALE, J. 04TH MARCH, 2010. Heard, By this application, learned Counsel for the applicant prays for leave to file appeal. According to him, the respondent is duly served but remained absent. Considering the bone of contentions on behalf of the applicant. Arguable case is made out. Leave granted. Application is allowed. CRIMINAL APPEAL NO. 59/2009 Heard submissions advanced on behalf of the appellant. According to the learned Counsel for the appellant, the certified copy of roznama from the learned 2nd Judicial Magistrate First Class, Nagpur do indicate that the case was adjourned from time to time. My attention has been invited to roznama dated 1st April, 2003 when the complainant was present but accused was absent when called. Later, on 13.07.2006, the learned JMFC, Special Court, Nagpur (constituted to decide cases under Section 138 of the Negotiable Instruments Act) decided to dismiss the complaint in default and the accused was acquitted. It is the grievance of the learned Counsel for 2 the appellant that the appellant did not know about transfer of the case from learned JMFC, 2nd Court, Nagpur to Special Court of JMFC, Nagpur, who dismissed the complaint. It is under these circumstances, it is contended that the complainant did not receive any opportunity to contest the case on merit. In view of Section 256 of the Code of Criminal Procedure, when absence of the complainant is duly explained, liberty is required to be granted to the complainant to prosecute the complaint as drastic power to dismiss the complaint ought not to be exercised merely on fault of absence of the complainant for a day particularly when he did not know about the transfer of the case from one JMFC to another JMFC who dismissed the complaint and acquitted the accused. Discretion has to be exercised judiciously considering the conduct of the complainant. Therefore, in view of the judgments of this Court in the matters of Pankaj Premji Dedhia .v. Jayant Paper Mills Ltd. and others (reported in 2009 All MR (Cri) 1090 and India Fintrade Ltd. .v. Cherry Fashions Ltd. and others (reported in 2009 All MR (Cri) 1657), impugned order dated 06.01.2007 passed by the learned JMFC, Special Court, Nagpur in Criminal Complaint Case No. 4770 of 2005 is quashed and set aside. The parties shall appear before the learned JMFC, Special Court on 06.04.2010 at 11:00 a.m.. The learned Counsel for the appellant to inform the accused regarding the date and time of the appearance before learned JMFC, Special Court, Nagpur. The case is restored back to the file. Appeal is allowed. Learned JMFC shall decide the case on merit in accordance with law from the stage when it was dismissed i.e. on 06.01.2007. JUDGE *rrg.