((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1860 OF 2006 Mrs.Daksha K. Sanghvi Applicant versus State of Maharashtra & ors. Respondents R.Sathyanarayanan i/by Lalit V. Jain for applicant. Miss A.T.Javeri, APP for State. CORAM : A.S.OKA, J. DATE : 30th March 2009 PC : 1. Heard learned advocate for the applicant. The office noting shows that the notice of the second respondent has been duly served by substituted service. On 15th October 2007 notice was issued for final disposal at the admission stage. 2. The applicant is the original complainant who filed a complaint for commission of an offence punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the said Act"). The learned counsel appearing for the applicant invited my ((-2-)) attention to the typed copy of Roznama and submitted that there was no justification for the learned Trial Judge for exercising the power under section 256 of the Code of Criminal Procedure, 1973 ("Code" for short). 3. I have perused the Roznama. The process was issued on the complaint on 20th October 2003. On 29th January 2004 the applicant was present along with his advocate. The complaint was adjourned to 6th May 2004. On 6th May 2004, the complaint was adjourned to 30th September 2004 as the board was discharged. On 30th September 2004, the applicant was present but the accused were absent. Hence, non-bailable warrant was issued against accused nos.2 to 5 returnable on 11th April 2005. On 11th April 2005, the learned Magistrate was on leave and the case was adjourned to 4th August 2005. On 4th August 2005 the case was adjourned to 9th January 2006 for receiving report of service of warrant. On 9th January 2006, 26th February 2006 and 1st April 2006 the applicant and his advocate were absent. 4. The applicant has stated in the application that the the complaint was transferred from the ((-3-)) Court of learned Metropolitan Magistrate, 33rd Court, Ballard Estate to the Court of Small Causes on 9th January 2006. A specific averment has been made that the applicant was not aware of the transfer of the case and that is the reason for absence of the applicant on the last three dates from 9th January 2006. The said averment in the application has not been disputed by the respondents. A perusal of the xerox copy of the Roznama does show that the case was transferred as contended by the applicant. However, there is no entry in the Roznama to show that the intimation or notice of transfer was issued to the applicant. In the circumstances, there was no justification for the learned Magistrate to pass discretionary order under section 256 of the said Code. The said order will have to be set aside. 5. Hence, I pass following order :- (a) The impugned order dated 1st April 2006 is quashed and set aside; (b) The complaint bearing No.1069/S/2003 is restored to the file of learned Judge; ((-4-)) (c) The learned Judge will issue fresh summons to the accused and will proceed with the case in accordance with law from the stage at which it was pending on 1st April 2006; (d) Writ to be sent immediately. (A.S.OKA, J.)