- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2428 OF 2007 IN CRIMINAL APPEAL No. OF 2007 State Bank of India .. Applicant/ Appellant V/s. State of Maharashtra & Anr. .. Respondents. *** Mr. J. K. Bhatia for the Applicant. Mrs. A. A. Mane, APP for the respondent State. CORAM : R. V. MORE, J. DATED : 10th JULY, 2009. P.C. 1. By the order dated 24-10-2007 notice was issued to respondent no.2 and was made returnable on 11-12-2007. Again fresh notice was issued to the respondent no.2 by the order dated 12th of August, 2008, with intimation that the appeal may be disposed of finally at the stage of the admission. However, none appears on his behalf, though served. 2. Having heard the learned counsel for the applicant and the learned APP for the respondent no.1, I am of the view that a case is made out for grant of leave to file appeal against acquittal and - 2 - therefore, leave is granted and appeal is admitted. By consent of the applicant and and the learned APP, the appeal is taken up for final hearing. 3. The applicant filed complaint being Criminal complaint No. 537/SS/06 in the court in 28th Metropolitan Magistrate Court under section 138 of Negotiable Instruments act, 1981 against the respondent No.2 accused. A verification of the applicant, original complainant, was recorded on 2nd of September, 2006 and the process was issued against the respondent no.2. The case thereafter was placed on board of learned 23rd Court of Metropolitan Magistrate on 20.10.2006. Since the learned Metropolitan Magistrate was on leave, the board was discharged and the case was adjourned to 27th April, 2007. The learned Chief Metropolitan Magistrate meanwhile by his order dated 15.02.2007 transferred the case to the Small Causes Court Special Metropolitan Magistrate and the date was given as 19.04.2007. The case was placed on the Board of the learned Special Metropolitan Magistrate on 19.04.2007. However, on that date the applicant could not remain present for want of knowledge. The respondent no.2 accused also not remained present and therefore, the case was adjourned to 27.04.2007. On 27.04.2007 the Special Metropolitan Magistrate and Judge of the Small Causes Court, Mumbai dismissed the case in default for non-payment of process fee by the appellant within the reasonable time for issuing fresh summons/warrant and the respondent no.2 accused came to be acquitted. This order is being challenged by the appellant in this appeal. - 3 - 4. Having gone through the Rozanama, I am of the considered view that the learned Magistrate committed error in dismissing the complaint in default. Firstly, the complaint should not have been dismissed for non-payment of the process fee inasmuch as the process fee was paid on 30th of May, 2006 and summons was already issued to the respondent no.2; however, the service was awaited. Endorsement to that effect is already made on the complaint. Secondly, by order dated 20.10.2006 the case was adjourned to 27th of April, 2007. However behind the back of the petitioner/applicant the case was transferred to the Small Causes Court at Bombay by the order dated 15.02.2007 passed by the Chief Metropolitan Magistrate and the same was directed to be placed on the Board of Small Causes Court on 19.04.2007. Naturally for want of knowledge the applicant could not remain present on the said day. As stated above, on 19.04.2007 the case was adjourned to 27.04.2007. However, the appellant came to know about the transfer of his case to the Small Causes Court on 27th April, 2007 when he had gone to attend the case before the 28th Metropolitan Magistrate Court, Mumbai. On 27.04.2007 the applicant- complainant's Advocate could not reach the Small Causes Court as he was held up in traffic and therefore, the Special Metropolitan Magistrate and the Judge of the Small Causes Court dismissed the complaint. 5. In my view, the appellant -complainant has given sufficient cause for remaining absent when the complaint was called out on 27.04.2007. The learned Special Metropolitan Magistrate also dismissed the complaint for the non-existence reasons, namely, the - 4 - payment of process fee not paid. The applicant, the original complainant, has already taken steps for service of summons and summons was sent to the respondent no.2 original accused. 6. In these facts and circumstances of the case, the impugned order deserves to be quashed and set aside. The same is accordingly set aside. The appeal is allowed. Sd/- [R.V.MORE,J.]