1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.273 OF 2006 Mafatlal Finance Company Limited ..... Appellant. V/s Pranathi Leasing & Investment Pvt. Ltd. & Others ...... Respondents. Mr. Kezar Kharawala i/b R.K. Associates for the applicant. Mr. Kantilal H. Kanojia with Mr. Mayur S. Sonavane with Mr. P.N. Patwardhan for Respondent Nos. 1 and 2. Mr. J.P. Kharge, APP for the State. CORAM: V. M. KANADE, J. DATE : 28TH JUNE, 2010 P.C.:- 1. Heard the leaned Counsel for appellant and the learned Counsel for Respondent Nos. 1 and 2. 2. Appellant is challenging the order dated 26/07/2005 passed by the Learned Metropolitan Magistrate, 38th Court at Ballard Pier, Mumbai whereby the complaint filed by the appellant was dismissed under the provisions of section 256 of the Criminal Procedure Code. 3. The learned Counsel for the appellant/complainant 2 submitted that on 9th June 2005 since the advocate for the complainant was sick and could not attend the Court, the complainant applied for adjournment and the matter was adjourned to 11th June, 2005. On 11th June, 2005, the complainant could not attend the Court as his close relative had expired and, therefore, his advocate made an application for exemption which was allowed by the Court and the matter was adjourned to 26th July, 2005. On 26th July, 2005, the appellant/complainant could not remain present since his advocate had taken down wrong date. It is submitted that the learned Magistrate has not properly exercised the discretion vested in him under section 256 of the Criminal Procedure Code. 4. The learned Counsel appearing on behalf of Respondent Nos. 1 and 2 vehemently opposed the submission made by the learned Counsel for the appellant. He submitted that, in all, the complainant remained absent on 40 dates and his advocate was absent on 11 dates. He submitted that the complainant was not diligent in pursuing this complaint. 5. I have perused the complaint and heard both the counsel at length. It appears that the matter was transferred from court to court and on some occasions the court was not available. Therefore, merely because the complainant was absent on number of dates would not be a ground for dismissal of the complaint. Secondly, the appellant/complainant, in my view, has given adequate 3 grounds for not remaining present. On 9th June, 2005, his advocate was not well and on 11th June, 2005 an application for exemption was made by his advocate on the ground of death of one of the close relatives of the complainant. The learned Magistrate ought to have given one more opportunity to the complainant. 6. The impugned order, therefore, is set aside. The matter is restored to the file. Trial Court is directed to decide the criminal case as expeditiously as possible. The appellant/complainant, however, shall pay costs which is quantified at Rs 5000/-. Both parties shall remain present before the Trial Court on 19th July, 2010. (V.M. KANADE, J.) 4