1 Cr.Appeal 1101/09 Amk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1101 OF 2009 The Sarvodaya Co-op. Bank Ltd. Mumbai .. Appellant Vs. Balawantrao S. Yadav & Anr. .. Respondents Mr. Arjun Kode for the Appellant. Mrs. A. A. Mane APP for the Respondent State. CORAM : MRS. R. S. DALVI, J. DATE : 15th December, 2009. P.C. 1. This appeal challenges the order of learned Metropolitan Magistrate, 10th Court, Andheri dismissing the complaint under Section 256 of the Code of Criminal Procedure and acquitting the accused for want of presence of the complainant on the date of dismissal on 05.01.2009. The applicant was directed to produce the entire roznama before leave to appeal came to be filed. The roznama shows that the criminal case pending before the Court of Metropolitan Magistrate was adjourned from time to time on at least 14 occasions. The applicant/complainant remained present to prosecute the complaint on a number of dates of hearing. 2 Cr.Appeal 1101/09 The complaint was filed in 2004 and has been dismissed in January, 2009. The complainant is not expected to remain present on each and every date of hearing when the complaint remain pending for 5 years. Technically he would have to remain present when the learned Magistrate would take up the matter. It would be too hard to expect the complainant to remain present without fail when the accused himself is not present or when the Court cannot take up the matter on number of occasions. 2. Application for leave to appeal was granted after observing the progress of the criminal complaint from the complete roznama produced by the applicant. The applicant was directed to serve notice of the appeal upon accused/respondent No.1 herein. The notice has been sent as directed by RPAD. It has been returned with the endorsement “unclaimed”. The notice is therefore properly served. For the reasons mentioned in the order dated 16th November, 2009 for which the appeal came to be admitted, the appeal must also be disposed of itself. Hence, for the same reasons, the appeal is disposed of in terms of following order :- 3 Cr.Appeal 1101/09 :: O R D E R :: 1. Order dated 05.01.2009 of the learned Metropolitan Magistrate, 10th Court, Andheri is set aside. 2. Criminal case No.2445/SS of 2003 is restored to the file of the learned Magistrate. 3. The learned Magistrate shall cause notice to be issued to respondent No.1 herein who is the accused under complaint and proceed in accordance with the law. 4. The applicant shall initially remain present before the learned Metropolitan Magistrate on 12th January, 2010. 5. Criminal Appeal is disposed of accordingly. (R. S. DALVI, J.)