1 APEAL-1171.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.1171 OF 2009 IN COMPLAINT NO.1423/SS/2005 M/s. National Small Industries Corporation Ltd. .... Appellant Vs. Kamlakar Eknath Rao & Anr. .... Respondents Ms Srivastav i/b M/s. Consulta Juris for the Appellant. Shri S.A. Shaikh, APP, for the State. CORAM: R.C. CHAVAN, J. DATED: JULY 27, 2011 P.C: This is an appeal against dismissal of a complaint of the offence punishable under Section 138 of the Negotiable Instruments Act by the learned Metropolitan Magistrate, 6th Court, Mazgaon, Mumbai by order dated 25-7-2006. The application for leave to file appeal had come up before this Court on 25-11-2009 when the following order was passed: "1. This is an application for leave to file appeal challenging the judgment of learned Metropolitan 2 APEAL-1171.09 Magistrate, Mazgaon. The application of the complainant under section 138 of the Negotiable Instruments Act was dismissed for want of prosecution as the complainant did not produce his affidavit of examination-in-chief and documents. The said order of dismissal is challenged. 2. The complainant has produced the documents that he seeks to rely upon before this court. The complainant has also produced the draft of his affidavit of examination-in-chief. 3. Notice has been served upon Respondent No.1 by Registered Post. However, Respondent No.1 has failed to appear. Leave to appeal is granted. Appeal shall be kept on board for final hearing on 10th December 2009. The applicant shall once again give notice to Respondent No.1 by Registered Post and Under Certificate of Posting. Notice shall state that the appeal shall be taken up for final hearing. Call for Records and Proceedings." In view of this order a fresh notice was served by the appellant on the respondent. Affidavit of service has been filed. The respondent is not present. The roznama of the proceedings shows that on some dates the complainant was absent, on some dates the Court was vacant and on some dates both the parties were absent. The 3 APEAL-1171.09 learned counsel for the appellant states that the appellant was in fact ready with the affidavit of evidence and the documents but before the appellant could file those documents, the learned Magistrate dismissed the complaint. The learned counsel states that the appellant is a Government of India Undertaking. Considering all this, in order to enable the parties to have the lis decided on merit, the appeal is allowed. The impugned order is set aside and the learned trial Magistrate is directed to decide afresh the case on merit. (R.C. CHAVAN, J.)