/ 1 / IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 892 OF 2006 Godrej Sara Lee Limited ...Applicant Vs. The State of Maharashtra ...Respondent --- Shri Prakash Naik i/b. Shri Sanjog S. Parab for Applicant Mrs. M.H. Mhatre APP for the State ---- CORAM: V.M. KANADE J. DATED 8TH DECEMBER, 2008 P.C. 1. Heard the learned Counsel appearing on behalf of the Applicant and the learned APP for the State. 2. Leave is granted. Appeal is admitted. By consent, the appeal is taken up for hearing, forthwith. 3. The Applicant is challenging the judgment and order passed by the Trial Court, dismissing the complaint under section 256 of the Criminal Procedure Code on the ground that the Complainant was absent when the matter was called out. 4. The learned Counsel appearing on behalf of the Applicant submitted that the Roznama which is annexed with the application indicates that on 7.10.2005, the plea of the accused was recorded and on the next date, the Learned Magistrate was pleased to dismiss the complaint though the advocate for the Complainant was present. / 2 / 5. On the other hand, the learned APP for the State submitted that the Roznama indicates that the complainant had remained absent on number of dates. He submitted that, therefore, no case is made out for setting aside the order passed by the learned Magistrate under section 256 of the Criminal Procedure Code. 6. I have perused the Roznama and the impugned order. The Roznama indicates that the plea of the accused was recorded on 7.10.2005 and on the very next date the complaint was dismissed by the Learned Magistrate under section 256 of the Criminal Procedure Code. It is the settled position in law that the Magistrate has to exercise the discretionary powers vested in him under section 256 of the Criminal Procedure Code judiciously. It is also well settled position that if the presence of the Complainant is not required, then merely on the ground that he is absent, the Magistrate should not dismiss the complaint on that ground under section 256 of the Criminal Procedure Code. The Roznama indicates that the Respondent-accused had challenged the order of issuance of process by filing revision application and as a result, the complaint was pending for quite some time. The delay, therefore, caused was entirely on account of pendency of the revision application filed by the accused. The Roznama indicates that the complainant's advocate was present and had requested for / 3 / adjournment. 7. Considering the facts and circumstances of the case, in my view, the learned Magistrate erred in rejecting the complaint under section 256 of the Criminal Procedure Code. In my view, the learned Magistrate ought to have given one more opportunity to the Complainant to lead the evidence. The impugned order is, therefore, set aside. 8. The complaint is restored to the file. The hearing of the complaint is expedited. Appeal is allowed. Both the parties should appear before the Trial Court on 8th of January, 2009. V.M. KANADE J.