1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Criminal Appeal No.1118 of 2009 M/s.Sopariwala Exports .. .. Appellant v/s. M/s.Sanvi Shipping Pvt.Ltd. & ors. .. Respondents Mr.S.V. Marwadi i/by Mr.Shailesh Kantharia for Applicant. Mrs.P.P. Bhosale, APP for State. ---- CORAM : SMT.ROSHAN DALVI, J. Dated : 11th December 2009 P.C. : 1. Respondent No.1-Company and Respondent Nos.2 and 3 have been served through courier. The packets have been returned with the remark No such person . The service has been effected at the last known address. Hence, the service is proper and accepted. 2. The Criminal Appeal impugns the order of the learned Magistrate dated 21.3.2009, dismissing the complaint of the Appellant herein filed under Section 138 of the Negotiable Instruments Act for failing to remain present for the cross-examination. The Appellant has produced the entire Roznama of the Trial Court which has been considered at the time leave to appeal was granted. It is seen that on as many as 24 2 occasions the Appellant remained present. The criminal complaint has been filed since 2001. It has been dismissed in 2003. For the 8 years, it remained pending before the learned Magistrate. The complainant remained present on 24 days of hearing. Merely because the complainant was absent on the last date of hearing and on a few earlier occasions, there would be a travesty of justice, if the complainant is not heard on merits. 3. Though technically the learned Magistrate is entitled to dismiss the complaint, however, it is seen that the complainant has not persistently on many occasions remained absent seriatim. The complaint should be heard on merits. Hence, the order of dismissal dated 21.3.2009 is set aside. The complaint is restored to the file of the learned Magistrate/Special Judge, Small Cause Court, Mumbai, in Case No.3057/SS/2005. 4. The learned Magistrate shall proceed in accordance with law. (SMT.ROSHAN DALVI, J.)