- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.6542 OF 2005 APPLICATION NO.6542 OF 2005 APPLICATION NO.6542 OF 2005 Panditrao Rangnath Kakad ...Applicant vs. Sukhdeo Genu Shelke & Others ...Respondents Mr.Ajay Varma i/b Mr.H.E.Palwe for the applicant Ms P.P.Shinde A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : AUGUST 12,2008 : AUGUST 12,2008 : AUGUST 12,2008 P.C.: P.C.: P.C.: 1. As per administrative order of the Hon’ble the Chief Justice issued on 7th July 2008, this application has been assigned to this Court. Heard Advocate for the Applicant. On 21st September 2007, this court issued notice to the first Respondent. The order of this court records that notice will state that this application under section 378 (4) of the Code of Criminal Procedure,1973 (hereinafter referred to as the said Code) and the Appeal against acquittal will be disposed of finally at the stage of admission. Office noting shows that the first Respondent is duly served. None appears for the first Respondent. A case is made out for grant of leave. Leave to prefer an Appeal is granted. Appeal is admitted and in terms of order dated 21st September 2007, the Appeal is immediately taken up for final disposal. I have perused the Record and Proceedings. 2. The Applicant is the complainant in a private complaint filed under section 138 of the Negotiable Instrument Act,1881. Process was issued on the said complaint. By order dated 18th - 2 - July 2005, the complaint was dismissed in exercise of power under section 256 of the said Code and the first Respondent accused was acquitted. The submission of the learned counsel for the Applicant is that the Applicant could not remain present before the Trial Court after 9th March 2005 as Applicant’s daughter died in an accident. It is stated that the Applicant was not aware that the complaint was kept on 13th July 2005 and therefore, on 18th July 2005 the Applicant was not present. He stated that due to shock suffered by the Applicant as a result of demise of his daughter, the Applicant was under medical treatment. 3. I have considered the submissions. I have perused the record. Perusal of the Roznama shows that till 3rd February 2005, the Applicant was regularly present before the court. On 3rd February 2005 the plea of the first Respondent was recorded. Only after 9th March 2005, on four dates fixed in the complaint, the Applicant remained absent. On 13th July 2005, the first Respondent filed an application at Exh.13 praying for dismissal of the complaint under section 256 of the said Code. Perusal of the record shows that even a copy of the said application was not supplied to the Applicant or his Advocate. On 13th July 2005, the learned trial Judge passed an order on the said application directing that the same shall be kept for orders. The said application was kept for orders on 18th July 2005 when the impugned order dismissing the complaint was passed by the learned Trial - 3 - Judge. Thus, perusal of the roznama shows that till 9th March 2005, the complaint was diligently prosecuted by the Applicant. The Applicant has come out with a case that due to demise of his daughter in an accident, he suffered from shock and could not attend the complaint after 9th March 2005. 3. Considering the reasons set out for absence of the Applicant and considering the fact that till March 2005, the Applicant has diligently prosecuted the complaint, an opportunity deserves to be granted to the Applicant to prosecute the complaint. Hence, impugned order will have to set aside. 4. Hence, I pass the following order : i) Impugned order dated 18th July 2005 passed by the learned trial Judge is quashed and set aside and summary Criminal Case No.6120 of 2003 is restored to the file of the learned trial Judge. ii) The Trial Court will issue intimation of the date fixed in the complaint to the complainant as well as to the first Respondent-accused. The trial court will expeditiously dispose of the complaint. iii) All contentions of the parties on merits of the complaint are expressly kept open. - 4 - iv) Appeal is partly allowed in above terms with no order as to costs. JUDGE JUDGE JUDGE