/ 1 / IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1572 OF 2008 IN CRIMINAL APPEAL NO. OF 2008 M/s. Sunbeam Monochem Pvt. Ltd. ...Applicant Vs. Mercury Investment Intermediates Pvt.Ltd. & Ors. ...Respondents --- Shri Kishor Bhatia for Applicant Shri Rajesh More APP for State. Ms. G.K. Tripathi for Respondent No.2 ---- CORAM: V.M. KANADE J. DATED 24TH NOVEMBER, 2008 P.C. 1. Leave is granted. 2. Appeal is admitted. 3. Heard the learned Counsel appearing on behalf of the Applicant and the learned Counsel appearing on behalf of the Respondent. In this case, matter was adjourned from time to time since the statement was made by the Counsel appearing on behalf of the Respondent that against the order of condonation of delay passed by his Court, the Respondent had filed an SLP in the Apex Court. However, perusal of Roznama shows that number of dates were taken by the Respondent. The number of the SLP was not given by the learned Counsel appearing on behalf of the Applicant. 4. By consent, application is taken up for hearing at the admission / 2 / stage itself. The Applicant is challenging the order passed by the learned Magistrate dated 23.11.2005 whereby the learned Judge was pleased to dismiss the complaint under section 256 of the Criminal Procedure Code since the Applicant was absent on that date. The learned Counsel appearing on behalf of the Applicant submitted that the learned Magistrate has not properly exercised the discretionary powers vested in him under section 256 of the Criminal Procedure Code by dismissing the complaint. It is submitted that the Applicant was absent only on two days i.e. 18.10.2005 and 23.11.2005. He submitted that the complaint was pending for quite some time on account of application for discharge being filed by the Respondent. He, therefore, submitted that the impugned order may be set aside and the complaint be restored to the file. 5. The learned Counsel appearing on behalf of the Respondent, on the other hand, submitted that the Complainant was a company and merely because one of the Directors was ill, the complaint cannot be set aside on the ground that the complainant and its advocates had remained absent. He further submitted that, in the Roznama, it is stated that on 18.10.2005 itself the complaint had been dismissed on account of non-appearance of the Complainant. He submitted that however, the learned Magistrate was pleased to set aside the impugned order dismissing the complaint and gave / 3 / one more opportunity to the Complainant and, therefore, the matter was adjourned to 23.11.2005 and on that date the learned Magistrate was constrained to dismiss the complaint. It is submitted that against the said order of dismissal, the Complainant had filed revision application, though it was not maintainable. He submitted that the Revision court had also taken into consideration the submission made by the Complainant on merits and had, thereafter, dismissed the revision application. He invited my attention to paragraph 9 of the said judgment passed by the Revisional court. Lastly, he submitted that the Complainant was not pursuing the matter because settlement talk was going on in the matter and the matter was settled and,therefore, original accused had been dropped from the array of the accused. He submitted that, therefore, no case was made out for interfering with the order passed by the learned Magistrate. 6. I have perused the Roznama. The Roznama indicates that the Complainant had remained present on number of occasions. The director of the company was looking after the matter and he did not remain present on two dates. 7. However, in my view, in the present case, the learned Magistrate ought to have given one more chance to the complainant. The matter was pending for quite some time. The Roznama indicates that the case was also / 4 / transferred from one court to other. The matter had also been adjourned on account of the Metropolitan Magistrate going on leave. Apart from that, the Respondent had also filed an application under section 145(2) and the said application was pending for some time. In view of this, it would not be correct to state that the Complainant had not been diligent in pursuing the case. Therefore, in my view, the learned Magistrate ought to have given one further chance. The submission made by the Learned Counsel for the Respondent, therefore, cannot be accepted. 8. The impugned order is, accordingly, set aside. The complaint is restored to the file. Hearing of the complaint is expedited. The Trial Court is directed to decide the complaint within a period of six months. The Complainant shall appear in the Court of the learned Magistrate on 17th January, 2009. If the Complainant does not co-operate with the Court, the learned Magistrate is at liberty to dismiss the complaint. Application is, accordingly, disposed of. V.M. KANADE J.