IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.609 OF 2008 Nareshchand Sogani .. Applicant Versus The State of Maharashtra & Anr. .. Respondents Mr.S.K.Jain for the applicant. Mr.Y.S.Shinde, A.P.P for the State. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 05th March 2009. : 05th March 2009. : 05th March 2009. P.C.: . Heard learned advocate for the applicant. By order dated 10th April 2008 this Court issued notice for final disposal. The office noting shows that affidavit of service has been filed by the applicant alongwith acknowledgment signed by the 2nd respondent. The 2nd respondent is not present. 2. The applicant filed a complaint alleging commission of offence under section 138 of the Negotiable Instruments Act, 1881 against the 2nd respondent. By the order dated 13th December 2007, the complaint was dismissed for want of evidence and the accused has been acquitted. The learned Metropolitan (2) Magistrate has recorded that the applicant has not filed affidavit of evidence and has not entered the witness box and therefore he had no option but to dismiss the complaint. 3. With the assistance of the learned counsel appearing for the applicant I have perused the record and proceeding. The record shows that the complaint was filed on 03rd July 2001. The record shows that roznama of the case has been maintained in a very shabby manner apart from the fact that the roznama of the proceedings prior to 08th March 2004 is not maintained. The roznama is not maintained in the form prescribed by the criminal manual issued by this Court. I find that there is an order passed on 13th July 2001 keeping the complaint for verification on 09th July 2001. On the date fixed for verification, process was issued. What transpired from the returnable date i.e from 03rd December 2001 to 08th March 2004 is not reflected from the roznama of the proceedings. 4. The roznama dated 08th March 2004 records that both the parties were present and plea of the 2nd respondent was recorded and the case was adjourned to (3) 19th May 2004. The perusal of the record shows that from 19th May 2004, the complaint was adjourned from time to time. Till 16th June 2007 it appears that the applicant-complainant has appeared before the Court on various dates except 30th July 2005, 01st October 2005 and 19th April 2007. On 12th April 2007 the complaint was adjourned to 16th June 2007. Further entries in the roznama shows that the complaint appeared on board on 15th June 2007 instead of 16th June 2007 when the complainant was absent but his advocate for present. Roznama dated 10th August 2007 shows that the complainant was absent. But his advocate was present. On 13th December 2007 the complainant/applicant remained absent but his advocate was present. The learned Judge proceeded to pass impugned order on that day by recording that the applicant has not taken any steps to lead the evidence. From the date of recording of plea till 12th April 2007, I find that the case was not adjourned on account of any default on the part of the applicant. Even on subsequent dates when the applicant was absent, there is no entry in the roznama that because of the absence of the applicant the hearing of the complaint was required to be adjourned. (4) 5. The perusal of the roznama shows that from March 2004 the applicant has diligently prosecuted the complaint. The complaint remained pending for considerably long time. When the proceedings of the complaint showed that the applicant was diligently prosecuting the case, the learned Judge ought not have taken a harsh view of the matter by taking recourse to section 256 of the Code of Criminal Procedure, 1973. Moreover, in the roznama of all the dates subsequent to 08th March 2004 show that on none of the dates the case was fixed for recording of evidence. 6. Considering all these aspects, in my view, the learned Judge could not have exercised the power under section 256 of the said Code by dismissing the complaint. 7. In the circumstances, I pass the following order: (i) The impugned order dated 13th December 2007 is quashed and set aside. The complaint (CC NO.716/S/2001) is restored to the file of learned Metropolitan (5) Magistrate. (ii) The learned Magistrate will issue a fresh summons to the 2nd respondent (accused) and will proceed with the case from the stage at which it was pending on 13th December 2007. (iii) Application and Appeal are allowed in above terms. (iv) Writ to be sent immediately. (A.S.Oka,J)