1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3534 OF 2008 Vasudeo Jadhav ...Applicant Vs. M/s.M.G.Constructions and Ors. ... Respondents ----- Mr.Venkatesh A. Shastry for Applicant Mr.S.A. Shaikh -APP for State. ----- CORAM: V.M. KANADE J. DATED: 11TH JUNE, 2010 P.C. 1. Heard the learned Counsel appearing on behalf of the Applicant. None appears on behalf of the Respondents, though they were served. The Applicant has filed affidavit of service. 2. The Applicant is challenging the order passed by the 9th Joint Jundicial Magistrate, First Class, Pune, who by his order dated 15.4.2008 was pleased to dismiss the complaint filed by the Complainant under section 138 of the Negotiable Instruments Act. The learned Magistrate was pleased to dismiss the complaint under section 256 of Cr.P.C. The learned Magistrate has observed that the Complainant did not 2 take steps for securing presence of the accused. 3. The learned Counsel for the Applicant has invited my attention to the Roznama which was filed by the Applicant. He submitted that the complaint was filed on 27.8.2006 and summons was issued by the learned Magistrate on 12th June, 2007 and immediately thereafter, after two dates, the complaint was dismissed on 15.4.2008. 4. Perusal of the Roznama indicates that the observation made by the learned Magistrate is incorrect. Since immediate steps were taken by the Complainant to secure the summons of the court and, thereafter the complaint was dismissed after two dates. The Apex Court in catena of cases has observed that the discretion vested in the Trial Court of dismissing the complaint under section 256 of Cr.P.C. has to be exercised in a judicious manner. The impugned order indicates that the said discretion has not been properly exercised by the learned Magistrate and opportunity ought to have been given to the Complainant to serve the summons which was already issued by the Court. Roznama does not indicate that the Applicant was not diligent in taking steps to serve the Respondents. When notice was issued by this Court on 14th October, 2008, a direction was given that 3 the notice should stat that the appeal itself would be finally disposed of at the stage of admission. 5. In this view of the matter, in my view, this is a fit case for setting aside the impugned order. The impugned order dated 15.4.2008 is set aside. Matter is remanded back to the Trial Court. The Applicant shall take appropriate steps to serve the summons on the accused. After the summons is served, the Trial Court decide the matter as expeditiously. 6. Application is, accordingly, allowed and disposed of. (V.M. KANADE J.)