sns IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 77 OF 2011 IN CRIMINAL APPEAL NO. OF 2011 Nimish R. Kulathor ..Applicant. v/s. Dharmraj K. Zende & Anr. ..Respondents. Ms Pushpakarni Kulkarni i/by K.S.Patil, advs. for the Applicant. Ms G.P.Mulekar, APP for the respondent/State. CORAM : J.H.BHATIA, J. DATE : 26th September, 2011 PC : 1 The applicant seeks leave to prefer appeal against the order of acquittal passed by the learned J.M.F.C., Pune in SCC No.48206 of 2007 under Section 138 of the Negotiable Instruments Act on the ground that the complainant and his advocate were absent when the matter was called. 2 The order reveals that on 30.8.2010 plea of the accused was recorded and the matter was adjourned to 7.9.2010. On that date, the complainant and his advocate were absent. Therefore, the learned Magistrate passed the order below Ex.1 and posted the matter to 23.9.2010 for dismissal. On that day also none appeared and, therefore, the complaint came to be dismissed. According to the applicant, though the Court had fixed date 7.9.2010 for the evidence, inadvertently the advocate sns for the applicant had taken date 7.10.2010 and he had informed the complainant also accordingly. In view of this, none of them appeared on 7.9.2010. As they were not aware about the next date, the complainant does not appear on 23.9.2010 also. 3 Though the respondent no.1/accused has been served, none appears for him. Taking into consideration the facts noted above, leave to prefer appeal granted. Appeal be registered. 4 In view of the facts notes above, it will be in the interest of justice to set aside the impugned order and to remand the matter to the trial Court for disposal as per law after giving opportunity to both the sides. 5 In the result, appeal is also allowed. The impugned order of dismissal is hereby set aside and the SCC No.48206/2007 is hereby remanded back to the learned J.M.F.C., Pune for disposal as per law after giving opportunity to both the sides. (J.H.BHATIA, J.)