IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3752 OF 2007 M/s.Elite Construction Co. .. Applicants Versus State of Maharashtra & Ors. .. Respondents Ms.Shilpa Kapil for the applicants. Mr.Y.S.Shinde, A.P.P for the respondent no.1. Mr.Harshad E. Palwe for the respondent nos.2 to 5. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 29th January 2009. : 29th January 2009. : 29th January 2009. P.C.: . Heard the learned advocate for the applicant and the learned advocate for the respondent nos.2 to 5. Leave is granted under sub section 4 of section 378 of the Code of Criminal Procedure, 1973. Appeal is admitted. The learned counsel appearing for the respondent nos.2 to 5 waives service. The learned A.P.P waives service for the respondent no.1. Considering the nature of controversy involved, the appeal is immediately taken up for final disposal. 2. The appellant is the complainant in a complaint filed under section 138 of the Negotiable Instruments (2) Act, 1881 (hereinafter referred to as the said Act of 1881). By order dated 13th April 2005, the learned Metropolitan Magistrate, 44th Court, Andheri, Mumbai dismissed the complaint in exercise of powers under section 256 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the said Code) and the accused were acquitted. The learned Judge noted that the complainant/appellant was absent for last consecutive dates of hearing. 3. The learned counsel appearing for the applicant pointed out that till 27th October 2004 the case was pending before the Court of learned Metropolitan Magistrate, 44th Court at Andheri. She pointed out that on 27th October 2004 plea was recorded and the case was adjourned to 05th January 2005. From the roznama of the case the learned counsel appearing for the appellant pointed out that after 27th October 2004 the case was transferred to Andheri Railway Mobile Court. She pointed out that it appears from the roznama that after 22nd February 2005 the case was again re-transferred to 44th Court. Her submission is that the appellant was not aware of the said transfers as no intimation was issued to the appellant. She submitted that is the reason why the appellant could not remain present. The (3) learned counsel appearing for the 2nd to 5th respondents submitted that after the transfer of the case to the Andheri Railway Mobile Court as well as after the re-transfer of the case to the 44th Court, the accused and their advocate regularly remained present. He pointed out that the roznama dated 11th March 2005 recorded by the learned Metropolitan Magistrate of the 44th Court records that advocate for the appellant was present. He pointed out that the case was adjourned on two more occasions thereafter and ultimately came to be dismissed. He, therefore, submitted that no interference was called for. 4. I have carefully considered the submissions. I have perused the record and proceeding of the complaint. Perusal of the roznama shows that on 27th October 2004 plea of the accused was recorded by the learned Metropolitan Magistrate, 44th Court, Andheri and the case was adjourned to 05th January 2005 for recording of evidence. After 27th October 2004 the case appears to have been transferred to the Railway Mobile Court at Andheri. There is nothing on record to show that an intimation of the transfer was issued to the appellant. The roznama shows that after the case was transferred to the Andheri Railway Mobile Court the appellant (4) persistently remained absent. Lastly, the case appeared before the Railway Mobile Court on 22nd February 2005 when it was adjourned to 11th March 2005. The roznama records that on 23rd February 2005, the learned Chief Metropolitan Magistrate passed an order re-transferring the case to the 44th Court at Andheri. There is nothing on the record to show that an intimation of the said transfer was issued to the appellant. It is true that the roznama reflects that after the first transfer as well as the second transfer, the accused alongwith their advocate were all along present. There is a stray entry in roznama dated 11th March 2005 recording presence of the advocate for the appellant. Except for the said date, from 05th January 2005 onwards the appellant and his advocate were consistently absent. 5. However, the fact remains that on two occasions the case was transferred and no intimation has been issued to the appellant of the orders of transfer. Once it is revealed that there is no intimation issued to the appellant of the orders of transfer, the presence of the accused before the transferee Court is not relevant while examining the conduct of the appellant. The complaint was filed in the year 2000. Various dates were fixed from 19th April 2001 till 27th October 2004. (5) The roznama shows that except on 12th May 2004, the appellant was always present before the Court. This shows that the appellant was diligently prosecuting the complaint. 6. Considering the aforesaid factual aspect, an opportunity deserves to be granted to the appellant to prosecute the complaint. 7. Hence, I pass the following order: (i) Appeal is partly allowed. (ii) The impugned order dated 13th April 2005 is quashed and set aside and the complaint bearing CC No.1163/S/2000 is restored to the file of the learned Metropolitan Magistrate, 44th Court, Andheri, Mumbai. (iii) The learned Magistrate will issue a fresh summons to the accused and will thereafter proceed with the case from the stage of recording of evidence. (6) (iv) A copy of this order shall be forwarded to the learned Chief Metropolitan Magistrate. The learned Chief Metropolitan Magistrate will ensure that whenever cases are administratively transferred from one Court to another, notice/initmation of the transfer shall be issued to the concerned parties and/or their respective advocates. (v) Record and Proceedings be forthwith transmitted to the concerned Court. (A.S.Oka,J)