1 cri appln 4762-2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4762 OF 2009 Mr.vijay Sanghvi ...Applicant VS. Mr.Mahesh M. Udani & Anr. ...Respondents Mr.Sandeep Bhagwat for the Applicant. Mr.Amarlal Talreja for Respondent No.1. Mr.S.A. Shaikh, APP for the State. CORAM : U.D. SALVI, J. DATED : APRIL 21, 2011 P.C :- 1 Heard. Perused the application. 2 The applicant-complainant is seeking restoration of his complaint under Section 138 of the Negotiable Instruments Act vide C.C.No. 416/SS/2006 which was dismissed for default on 7th September, 2009 by the learned Judge, Court of Small Causes and Special Metropolitan Magistrate, Mumbai. 3 Order of dismissal reads as under :- 2 cri appln 4762-2009 The matter is part heard. The Complainant and advocate are absent, though repeatedly called. They were absent since 2008. Hence complaint is dismissed. Accused on record is acquitted. His bail bond, shall stands cancelled. Proceeding accordingly closed. 4 It is the case of the applicant that he lives at Goregaon and his Advocate who was representing him before the trial court lives at Borivali; and delay in reaching the court in time due to traffic in the city of Bombay, the order of dismissal came to be passed. It is his case that he had led his evidence to substantiate his case of dishonour of cheque of Rs.2 lakhs issued by the respondent no.1-accused and the evidence was to get completed with his cross-examination and further evidence of the concerned bankers but for the dismissal of the complaint as aforesaid. The learned Advocate for the applicant produced before this Court the copy of the Roznama evincing day to day progress in the case from time of its institution. 3 cri appln 4762-2009 5 The learned Advocate for the respondent no. 1 vehemently resisted the plea for restoration of the complaint made by the applicant. He pointed out from the copy of the Roznama that since the time the documents were adduced in evidence on 23rd October, 2008 on behalf of the complainant, the complainant virtually abandoned the proceedings and that led to the dismissal of the complaint. 6 It is true that the complaint and his Advocate remained absent from the time it was posted for further evidence on 20th November, 2008. However, on most of the intervening dates between 20.11.2008 and 18.8.2009, either the Court was not sitting or was on leave. On 18.8.2009, an application for dismissal of the complaint was moved, and it was kept for orders on 7th September, 2009 when it came to be dismissed for default. The applicant explains that on 18.8.2009, he and his Advocate did not remain present as they were under impression that 4 cri appln 4762-2009 the court was on leave and was not sitting. Entries in the Roznama provides a reason for such impression as it reveals that on previous occasions the Court either remained on leave or was not sitting. 7 A refusal to restore the complaint in such circumstances could only prejudice the rights of the applicant to have a decision in the said case on merits. So far as loss to the respondent no.1 accused is concerned, it can be compensated by suitable costs. 8 Leave is granted. The appeal is allowed. Order dated 7th September, 2009 passed in CC No. 416/SS/2006 is set aside. The complaint CC No. 416/SS/2006 is restored subject to payment of Rs. 10,000/- as costs to the accused. Parties shall appear before the trial court on 15th June, 2011. (U.D. SALVI, J.)