* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1658 OF 2009 W I T H CRIMINAL APPLICATION NO. 1659 OF 2009 M/s.Vision Merchandising Company ....Applicant V/s. 1. The State of Maharashtra 2. Mr.Sunilkumar Hirakant Mishra 3. M/s.S.D.Enterprises ....Respondents ======= Mr.S.V.Marwadi i/by.Ms.Sunita Sharma, adv.for applicant. Mr.S.A.Shaikh, APP for State—respondent no.1. Mr.A.K.Prajapati, adv.for respondents no.2 and 3. CORAM: SMT.R.P.SONDURBALDOTA, J. DATED: 10TH AUGUST, 2009. P.C. : 1. Heard counsels for both sides. 2. This is a common order on the above two criminal applications which have been filed for setting aside the order dated 13th January, 2009 passed by the 10th Metropolitan Magistrate Court, Andheri in C.C.No.2042/SS/2008 and C.C.No.2043/SS/2008 dismissing the complaints for default and acquitting respondents no.2 and 3 of the offence punishable under Section 138 Negotiable Instruments Act. Pursuant to the order dated 27th July 2009, these applications are heard finally at the stage of admission. * 2 * 3. The applicant is the original complainant and respondents no.2 and 3, the original accused. The copy of the rojnama which is annexed to the application shows how the matter had proceeded before the learned Metropolitan Magistrate. The complaint was filed on 14th March, 2008 and adjourned for verification to 3rd May, 2008. On the adjourned date, as the court was vacant, the complaints came to be adjourned. After one more adjournment at the instance of the applicant, his statement in verification was recorded on 7th August, 2008 and order of issuance of process came to be passed against respondents no.1 and 2. The process was made returnable on 24th October 2009. On next date, both the complainant and the accused were present. The order granting bail to respondents no.2 and 3 came to be passed and their plea came to be recorded. The complaints were posted to 15th December, 2008 for evidence. On that day, both the complainant and the advocate were absent and the case was adjourned for dismissal to 13th January, 2009. On the adjourned date as the complainant was absent, the complaint came to be dismissed. 4. Mr.Marwadi, the learned counsel for the applicant submits that there are several cases filed by the applicant under Section 138 Negotiable Instruments Act including the complaints herein which had been originally adjourned to 19th January, 2009. However, after 24th October, 2008 all the cases were simply notified on the board of the learned Metropolitan Magistrate on 15th December, 2008. The applicant and his advocate being unaware of the date, could not appear in the court. He submits that there was actually no negligence on the part * 3 * of the applicant in attending to the matter and requests that the order of dismissal be set aside and opportunity be given to the applicant for his case to be heard on merits. Mr.Prajapati, the learned counsel for respondents no.2 and 3 submits per-contra, that the applicant has been negligent in attending to his complaints and hence does not deserve any concession from the court. Perusal of the rojnama shows that the applicant has been diligently attending to the matters except for the last two dates, when he was absent. The absence of the applicant, in my opinion, has been sufficiently explained at paragraphs 12, 13 and 14 of the application. Therefore, in my view one opportunity is required to be given to the applicant to prosecute the matter. Hence, I pass the following order. O R D E R (i) The impugned order dated 13th January, 2009 passed by the learned 10th Metropolitan Magistrate, Andheri is quashed and set aside. The complaints filed by the applicant being C.C.No.2042/SS/2008 and C.C.No.2043/SS/2008 are restored to file. (ii) The trial court may proceed with the complaint from the stage when they were pending as on 13th January, 2009. (iii) The parties are directed to appear before the learned Metropolitan Magistrate on 1st September, 2009 at 11.00 a.m. [SMT.R.P.SONDURBALDOTA, J]