1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELATE JURISDICTION CRIMINAL REVISION APPLICATION NO.135 OF 2009 M/s.Anushool Metal Pvt. Ltd & Anr. .. Applicant Versus The State of Maharashtra & Anr. .. Respondents Mr.S.V.Marwadi for the applicant. Mr.H.J.Dedhia, A.P.P for the State. CORAM : A.S. OKA, J. DATE : 16th July 2009. P.C.: . Heard learned counsel appearing for th applicants. By order dated 29th April 2009 notice for final disposal at admission stage was issued. The office endorsement shows that notice has been duly served to the 2nd respondent. 2. The applicants were convicted by the learned Magistrate for the offence under section 138 of the Negotiable Instruments Act, 1881. An appeal against order of conviction was filed. The appeal was admitted. My attention has been invited to the roznama of the proceedings of the appeal as well as the order dated 16th March 2009. By the said order, the appeal was dismissed as the same was not prosecuted. It appears that on 02nd March 2 2009, when the appeal was fixed before the learned Additional Sessions Judge, though the advocate for the applicants was present, the applicants were absent. The learned Additional Sessions Judge cancelled the bail. The roznama dated 13th March 2009 shows that on that day the advocate for applicants was present. Adjournment was sought by the advocate for the applicants. Though the application was rejected, the appeal was adjourned to 16th March 2009. The applicants engaged another advocate on 16th March 2009. An application was moved by the advocate for the applicants for adjournment. The impugned order dated 16th March 2009 has been passed on the application for adjournment as well as on the appeal. The learned Judge rejected the application for adjournment and proceeded to dismiss the appeal for non prosecution as the advocate concerned showed inability to argue the matter. 3. From the order it appears that the advocate who was newly appointed by the applicants had sought time and expressed inability to argue the appeal on the day of which it was fixed for hearing. The learned Additional Sessions Judge has dismissed the appeal as not having been 3 prosecuted. The very fact that the applicants have engaged a new advocate shows that the applicants were interested in prosecuting the appeal. If the learned Judge was of the view that the hearing of the appeal has been unnecessarily protracted, in a given case after finding that the advocate appointed by the accused was not willing to argue the appeal, he could have appointed any other advocate to espouse the cause of the applicants or atleast he could have considered the appeal on merits. In my view, a gross illegality has been committed by dismissing the appeal on the ground that the same was not being prosecuted. As the impugned order is illegal, the same will have to quashed and set aside and the appeal will have to be restored to the file of the learned Additional Sessions Judge. 4. Hence, I pass the following order: : O R D E R : (a) The impugned judgment and order dated 16th March 2009 is quashed and set aside and Criminal Appeal No.79 of 2007 is restored to the file of the Sessions Court. (b) The applicants will appear before the learned Principal Judge of the City Civil Court on 24th 4 August 2009 at 11.00 a.m. The learned Judge may take up the appeal himself or may transfer it to some other Court as per his administrative convenience. It is made clear that no further notice of the date fixed of the appeal shall be served to the applicants. (c) The appeal shall be decided on its own merits as expeditiously as possible. (d) Revision application is disposed of in above terms. (A.S.OKA, J)