1 Ladda IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1940 OF 2009 IN CRIMINAL APPEAL No. OF 2009 M/s Indian Seamless Financial Services Ltd. Applicant/Appellant. vs. M/s Elegant Pharmaceuticals Ltd and Ors ..Respondents. Ms Asha Nair i/b Mahesh Menon & Co. Advocate for the Appellant. Mr P.A.Pol, A.P.P. for the State. CORAM: A.R.JOSHI,J. DATE : 17TH JUNE,2009. P.C.:- 1. Heard learned advocate for the Applicant (original complainant. It is a matter of leave to file appeal against the order of dismissing the complaint passed by the Metropolitan Magistrate, 12th Court at Bandra, Mumbai on 5th November, 2008. The said order purported to have been passed 2 under Section 256 of the Code of Criminal Procedure and it is specifically mentioned that accused stood acquitted. After perusing the impugned order, it is ascertained that when the said order was passed, the complainant was very much present and as such there could not have been recourse of provisions of section 256 of the Code of Criminal Procedure taken by the learned Magistrate. Moreover, in the said order, it is specifically mentioned that the accused persons were absent and proclamation report was already filed. The said order further mentions that the complainant failed to either secure the attendance of the accused or to proceed with the matter effectively. Per se such type of order cannot be passed under the provisions of Section 256 of the Cr.P.C.,which contemplates the closure of the matter and acquittal of the accused in the absence or death of the complainant and which is not the case in the present matter. 2. Considering the above, without there being any notice given to the respondent No.1 which is a pharmaceuticals company and its office bearers whose whereabouts are not available, the present leave petition can be granted and appeal is to be allowed and also disposed of with suitable directions to the concerned M. M. Court and also with suitable directions to the applicant to pursue the 3 matter. 3. In the result, at this stage itself, present leave petition is allowed. Appeal is admitted. It be numbered. Consequently, the appeal is also allowed and the entire matter be sent back to the learned M.M., Court No.12 Bandra, Mumbai who shall deal with the matter according to law after giving opportunity to the applicant to take appropriate steps as to secure the presence of the accused party. With these directions leave petition and appeal are accordingly disposed of. A.R.JOSHI,J.