((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3769 OF 2008 Dattatraya R. Patil Applicant versus Arun Rangrao Patil & others Respondents Gauri Jadhav for applicant. Y.S.Shinde, APP for State. CORAM : A.S.OKA, J. DATE : 09th February 2009 JUDGEMENT : 1. On 2nd February 2009, after hearing the learned advocate for first and second respondents, leave was granted and appeal was fixed for hearing on admission board. Accordingly, the appeal is taken up for hearing. Heard the advocate for the applicant. None appears for the first and second respondents though they are represented by an advocate. It must be stated here that when the delay was condoned and leave was granted on 2nd February 2009 the advocate appearing for the first and second respondents disclosed that his clients were not coming forward to give instructions for filing the reply. ((-2-)) 2. A complaint filed by the applicant alleging commission of offence under section 138 of the Negotiable Instruments Act, 1881 against the first and second respondents has been dismissed by the learned Magistrate by order dated 21st February 2005 in exercise of powers under section 256 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the said Code"). 3. It appears that on the very day on which the complaint was dismissed in exercise of the powers under section 256 of the said Code an application was made by the applicant for restoration of the complaint. By a separate order passed on the same day, the learned Magistrate purported to restore the complaint. A revision application was preferred by the first and second respondents against the said order of restoration which was allowed by order dated 11th July 2006. The revision application was allowed by setting aside the order of restoration only on the ground that the learned Magistrate had no jurisdiction to review/recall his earlier order of dismissing the complaint. In view of the aforesaid order passed by the ((-3-)) Sessions Court, the present appeal against acquittal has been preferred by the applicant. 4. I have perused the Roznama of the proceedings. The complaint was filed on 13th November 2000 on which order was passed on 7th December 2000 by the learned Magistrate by which process was issued for the offence punishable under section 138 of the said Act of 1881. A perusal of the Roznama from 23rd April 2001 to 7th June 2001 shows that the complainant was always present. On 4th August 2001 though the applicant/complainant was absent, his advocate applied for re-issuing the summons to the first accused. On 5th September 2001 it appears that an application was made by the applicant for issuing summons to first respondent. On 24th December 2001 the applicant was present and the first accused appeared through an advocate. On 26th February 2002 the case was adjourned as the Court was busy in another matter. The case was adjourned to 19th April 2002 for recording the plea of the accused. On 19th April 2002 both the applicant and the first and second accused, were absent and therefore, the complaint was adjourned to 20th May 2002. On 20th May 2002, ((-4-)) the plea could not be recorded as the learned Magistrate was on leave. On 8th July 2002, the plea could not be recorded as the first accused was absent and therefore on an application made by the applicant, the learned Magistrate issued non bailable warrant to the first accused. On 12th July 2002, the non bailable warrant issued against the first respondent was cancelled on his application. On 19th August 2002 and 18th October 2002, the applicant was absent, however, the case was not adjourned on account of the default of the applicant. On 19th August 2002 the learned Judge was on leave. On 18th October 2002 the Court was busy in another case and, therefore, the plea could not be recorded. On the next date i.e. on 13th November 2002, both the parties were absent but the case was adjourned on the ground that the Court was busy with another case. Thereafter I find that from 30th December 2002 till 18th November 2003 on various dates fixed, the applicant remained absent. However, on none of the dates fixed, the Roznama records that the case was adjourned on the ground that the applicant was absent. Infact on many of the dates during the said period, the Roznama records that the court time was over or the ((-5-)) Court was busy in another case. On 15th February 2004, both the applicant and the accused, were present but the plea was not recorded as the Court was busy with some other case. On 17th March 2004, 30th August 2004, 28th September 2004 and 5th November 2004 both the applicant and the first and second accused were absent. The Roznama of 17th December 2004 does not record that the applicant was absent. However, on the next date i.e. on 22nd December 2004, the applicant was absent but the plea was not recorded as the Court time was over. The Roznama dated 28th December 2004 does not record that the applicant was absent but on that date an application was made by the first accused for dismissal of the complaint. On 27th January 2005 and on 21st February 2005, the applicant was absent and as stated earlier, the complaint was dismissed on 21st February 2005. 5. From the Roznama it is clear that on many occasions the applicant was absent. However, the complaint was not required to be adjourned on account of the said default. The complaint appears to have been adjourned from time to time either on the ground that the learned ((-6-)) Magistrate was unavailable or that he was busy in another case. The case was never fixed for recording of evidence. From the year 2001, the case was adjourned from time to time for recording of the plea. For one or the other reason, the case was adjourned. Even the accused were absent on some dates. 6. Though the applicant was absent, the Roznama shows that the hearing of the case was not delayed on account of his absence, but the case could not proceed on account of other factors. Considering these peculiar facts, one more opportunity deserves to be granted to the applicant to prosecute the complaint on merits. However, the complainant will have to pay the costs to the first and second respondents. 7. Hence, I pass following order :- (a) The impugned order dated 21st February 2005 is quashed and set aside and Summary Criminal Case No.4192 of 2000 is restored to the file of Court of 6th Judicial Magistrate, First Class, Kolhapur subject to the condition that the applicant shall pay costs quantified at Rs.7,500/- to the first and second respondents ((-7-)) within a period of eight weeks from today; (b) The amount of costs shall be deposited by the applicant in the Court of Judicial Magistrate, First Class, Kolhapur. It is made clear that if the amount of costs is not deposited within the stipulated period of eight weeks, the order of dismissal of the complaint will stand; (c) In case the amount is deposited within the stipulated period, the learned Judicial Magistrate, First Class, Kolhapur will proceed with the case from the stage at which the complaint was pending on 21st February 2005. Before proceeding with the case, the learned Chief Judicial Magistrate will issue fresh summons to the first and second accused; (d) The application and/or appeal is allowed in above terms. (A.S.OKA, J.)