/ 1 / IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2271 OF 2008 Sudhir T. Parekh ...Applicant vs. Shri Hitesh Vijay Joshi & Anr. ...Respondents --- Shri S.V. Kotwal & Vanita Bhave for Applicant Shri P.A. Pol APP for the State ---- CORAM: V.M. KANADE J. DATED 16TH DECEMBER, 2008 P.C. 1. Heard the learned Counsel appearing on behalf of the Applicant. None appears on behalf of the Respondent No.1, though he is served. 2. Leave is granted. Appeal is admitted. Appeal is taken up for hearing forthwith. 3. On the last date, the Respondent No.1 appeared in person on 14th October, 2008 and took time to go through the records. The matter was, therefore, adjourned to 26.11.2008. On that day, the Respondent no.1 was unwell and, therefore, the matter was adjourned. Today also the Respondent is not present. When notice to the Respondent was issued on 31st July, 2008, it was clearly stated in the order that the matter will be finally decided by the next date. 4. The Applicant is challenging the order passed by the Learned / 2 / Metropolitan Magistrate, 13th Court, Dadar, Mumbai. By the said order dated 11th June,2008, the Learned Magistrate was pleased to dismiss the complaint for non-appearance of the Complainant on two previous dates. 5. The learned Counsel appearing on behalf of the Applicant has invited my attention to the Roznama which is annexed to the application. The Roznama indicates that the complaint was filed on 7th February, 2007. The Complainant was, thereafter, present on 30.4.2007. On the next date on 24.7.2007, the Complainant was absent but his advocate was present. On the next date, on 25.10.2007, the Complainant and his advocate were present. On that date, fresh summons was issued to the Accused. Thereafter, on the next two further dates, the Complainant and his advocate were absent. No report had been received by that date about service of the summons on the accused. The presence of the Complainant, therefore, on the two next dates was not necessary. The Learned Magistrate instead of giving one further chance to the Complainant, dismissed the complaint under section 256 of the Criminal Procedure Code. 6. In my view, the Trial Court has clearly erred in exercising the discretion vested in it under section 256 of the Criminal Procedure Code. The / 3 / presence of the Complainant was not required since it was obvious that the accused was trying to evade service of summons. The impugned order, is therefore, set aside. 7. The complaint is restored to the file. The Complainant shall appear before the learned Magistrate on 12th January,2009. V.M.KANADE J.