((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL ALPPLICATION NO.1346 OF 2008 IN CRIMINAL APPEAL NO.1221 OF 2008 WITH CRIMINAL APPEAL NO.1221 OF 2008 Suryakant B. Mangire Applicant versus State of Maharashtra & anr. Respondents Amol A. Deshpande for applicant. Y.S.Shinde, APP for State. Gajanan Savagave for 2nd respondent. CORAM : A.S.OKA, J. DATE : 04th March 2009 JUDGEMENT : 1. Heard the learned advocate for the applicant and the learned advocate for second respondent. On 9th January 2009 and 22nd January 2009 this Court has passed a specific order that if leave is granted, the appeal will be forthwith taken up for final disposal. Leave is granted and appeal is taken up for final disposal. 2. The applicant filed a complaint against second respondent alleging commission of an ((-2-)) offence under section 138 of the Negotiable Instruments Act, 1881. The complaint has been dismissed in exercise of powers under section 256 of the Code of Criminal Procedure, 1973. 3. The grievance of the applicant is that he was diligently prosecuting the complaint and when on all earlier dates the applicant was present he has been penalised by the learned Judge by dismissing the complaint on the day on which he was absent. He submitted that a very harsh view has been taken by the learned Trial Judge. 4. The learned counsel for the second respondent supported the impugned order by contending that the complaint was fixed for hearing and it was the duty of the applicant to remain present. He submitted that as the applicant was absent, the learned Judge was justified in acquitting the second respondent. 5. I have given careful consideration to the submissions. I have perused a true copy of Roznama of the case. From the Roznama it appears that the complaint filed by the applicant was registered on 9th September 2005 ((-3-)) and process was issued on the very day returnable on 8th November 2005. On the returnable date, the applicant and his advocate were present and an application was made for reissuing the summons which was granted. On 4th January 2006 which was the returnable date, the applicant and his advocate were present. On 8th March 2006 the applicant and his advocate were absent. However, on the next date i.e. 5th April 2006 the applicant and his advocate were present. On the subsequent dates i.e. on 22nd September 2006, 6th December 2006 as well as on 8th January 2007 the applicant was present. On 22nd January 2007 the complaint appears to have been taken on board though it was adjourned to 8th February 2007. On that day the second respondent appeared through an advocate and bailable warrant issued against him was cancelled. Infact, the witness summons was issued to the witnesses on that day. On 8th February 2007 the second respondent applied for exemption. On 8th May 2007 the applicant was present but his advocate was absent. However, the application for exemption was made by the second respondent as he was absent. The next date was 23rd May 2007 when the applicant and his advocate were ((-4-)) absent. The learned Judge passed the order under section 256 of the said Code on the very day. 6. A perusal of the Roznama shows that the applicant was diligently prosecuting the complaint right from September 2005. This is not a case where hearing of the complaint was delayed or was obstructed due to any default on the part of the applicant. As the complaint was adjourned from time to time for various reasons, the learned Magistrate could not have taken a very harsh view of the matter when he found that on 23rd May 2007 the applicant was absent. The power under section 256 of the said Code cannot be exercised mechanically only by reason of absence of the complainant. The Court must consider whether the complaint was diligently prosecuted by the complainant. Mere absence of the complainant on a particular day is no ground for passing an order under section 256 of the said Code. The Court has to examine whether there is repeated or persistent absence of the applicant and whether the absence has resulted in delay in disposal of the complaint or has caused prejudice to the accused. Mere absence of the complainant on particular day is ((-5-)) not a ground to exercise the power under section 256 of the said Code. 7. Hence, the application must succeed and I pass following order :- (a) The impugned order dated 23rd May 2007 is quashed and set aside; (b) The complaint bearing STC No.2708/2005 is restored to the file of learned Magistrate; (c) Learned Magistrate will issue fresh summons to the second respondent and will proceed with the complaint from the stage at which it was pending on 23rd May 2007; (d) Hearing of the complaint is expedited; (e) The application/appeal is allowed in above terms; (f) Writ be sent immediately. (A.S.OKA, J.) (This order is corrected as per order dated 31st March 2009.)