1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPLICATION NO.4561 OF 2010 IN CRIMINAL APPEAL NO. OF 2010 Shivaji Mahadu Gavali Aged about 45 years, Occ: Service, Indian Inhabitant of Mumbai residing at Room No.312, MHADA Police Line, 6A, 3rd floor, Majaswadi, Andheri (E), Mumbai 400 093 ...Applicant. v/s. 1 The State of Maharashtra 2 Smt. Premadevi Gaur w/o, Murarilal Sharma, aged about 40 years , R/at House No.75, Bajrang Nagar, Post: Sikandra, Agra-282007, Uttar Pradesh ...Respondents. Mr. A.R.Pandey , adv. For the Applicant/Appellant. Smt. P.P.Shinde, APP For the Respondent No.1/State. Mr. A.M.S.Solkar, adv. For the R.No.2. CORAM : J.H. BHATIA, J. DATED : SEPTEMBER 5 , 2011. ORAL JUDGMENT: 1 Heard the learned counsel for the parties. 2 Perused the record. Leave to prefer appeal granted. Appeal be registered. 3 With consent of the learned counsel , the appeal is taken up 2 immediately for final hearing. 4 Record reveals that the complaint under Section 138 of the Negotiable instruments Act was filed on 22nd July, 2009 and the process was issued on 31st July, 2009 . For quite sometime , accused/respondent could not be served and even NBW was issued returnable 23.8.2010. It appears that pending the execution of the warrant, accused appeared before the Court on 6th August, 2010 and moved an application for taking the matter on board. On that day, he was granted bail. On the same day, his plea was recorded and the matter was adjourned to 23.8.2010. On 23.8.2010 accused was granted leave to furnish cash security. On 3.9.2010, an application was moved by the complainant for adjournment for filing affidavit of evidence. That application was rejected and the accused was acquitted and the com plaint was dismissed under Section 256 of the Cr.P.C. 5 In the order dismissing the complaint under Section 256 on 3.9.2010 , the learned Magistrate noted that the plea was recorded on 6.8.2010 and thereafter the matter was adjourned for filing affidavit in evidence on 23.8.2010, 31.8.2010 and then to 3.9.2010 but the affidavit was not filed. However, these observations of the learned trial court does not find corroboration from the contents of the roznama. As per the 3 Roznama as noted above, the matter was not fixed on 6.8.2010 but on 23.8.2010 for return of NBW, it was taken on board on 6.8.2010 on the request of the accused and on the same day, plea of the accused was recorded. Therefore, question of presence of the complainant on 6.8.2010 would not arise. The matter was adjourned to 23.8.2010 . As per the original proceeding sheet that was the date fixed for the return of the warrant and the appearance of the accused, therefore, 23rd August was also not the date fixed for filing the affidavit in evidence. Roznama dated 23.8.2010 also does not reveal that the matter was adjourned to 31.8.2010 for filing affidavit. Only on 31.8.2010 after the accused deposited amount of cash security , the matter was adjourned to 3.9.2010 for filing affidavit in evidence and on 3.9.2010, i.e., very first date fixed for filing affidavit of evidence. Case was dismissed under Section 256 of the Cr. P.C. The learned Magistrate appears to have acted in great haste and, therefore, such order can not be supported. He did not give any reasonable time and opportunity to the complainant to lead the evidence in respect of the complaint and dismissed the case by giving reasons, which do not find support from the roznama. 6 Therefore, the appeal is allowed. The impugned order of dismissal of the complaint is hereby set aside. Criminal Case No. 4 9358/SS/2009 is hereby remanded back to the Metropolitan Magistrate 10th Court, Andheri for hearing and disposal as per law. 7 Parties shall appear before the trial Court on 3.10.2011. 8 Appeal stands disposed off. (J.H. BHATIA,J.)