IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 36 OF 2005 DURGANAND RAMNATH ....Appellant SANVORDEKAR,CURCHOREM GOA Versus VAMAN JAGU NAIK AND 4 ORS., ....Respondents Ms. Helena Fernandes, Advocate for the Appellant. Mr. C. A. Ferreira, Public Prosecutor for the State. Coram:- N. A. BRITTO, J. Date:- 29th November, 2006 P.C. Heard Ms. Helena Fernandes, the learned Counsel on behalf of the appellant/Complainant. 2. The respondents/accused have chosen to remain absent. In fact, they were duly served at the stage of hearing the application for grant of leave, but at that stage also, the respondents/accused chose to remain absent. 3. The appellant is the Complainant, whose complaint came to be dismissed for default for his non-appearance on 24.02.2005. Earlier, the Complainant was regular in remaining present before the Court and it does appear that on 18.11.2004, the Complainant's evidence was partly recorded. On the next date, i.e. on 13.01.2005, the Complainant was absent and exemption was sought on behalf of the Complainant. On 24.02.2005, the learned J.M.F.C. found that the Complainant as well as his Advocate were absent and proceeded to dismiss the complaint under Section 256 of the Code of Criminal Procedure, 1973. It is submitted on behalf of the said Complainant by learned Advocate Ms. Fernandes that the Complainant as well as his Advocate had taken the next date of hearing as 24.03.2005 and, for that reason, they had not attended the Court on 24.02.2005. Learned Advocate has placed reliance on Mohd. Azeem v. A. Vankatesh & Anr. (2003 ALL MR (Cri) 400 (S.C.)), wherein in a similar situation, the Hon'ble Supreme Court held that the fact that the Complainant had wrongly noted the date, could be a valid ground for restoration of the complaint. It is contended that the Complainant had always remained present before the Court. Therefore, it was not proper on the part of the learned J.M.F.C. to have dismissed the complaint on the very first day the Complainant had remained absent. 4. Consequently, this appeal deserves to succeed. The Order dated 24.02.2005, as regards the dismissal of the complaint, is hereby set aside and the complaint is restored to file. The learned J.M.F.C. is hereby directed to issue fresh notice to the respondents/accused before proceeding further with the said complaint, in accordance with law. The Complainant to appear before the trial Court on 15.12.2006 at 10.00 a.m. N. A. BRITTO, J. arp/*