IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISC. APPLICATION NO. 26 OF 2009 IN STAMP NUMBER MAIN NO. 3321 OF 2008 M/S SIDDHARTH MILK AND MILK PRODUCTS PVT. LTD. THROUGH ADMINISTRATIVE OFFICER UDAY PANDURANG BHOSALE ... Applicant Versus M/S. BHONSALE DAIRY AND 2 ORS., ... Respondents Ms. Sweta Naik, Advocate for the Applicant. Coram:- N. A. BRITTO, J. Date:- 27th February, 2009 ORAL ORDER: Heard Ms. Naik, the learned Counsel on behalf of the Complainant, the petitioner herein. For the view to be taken, notice ordered to be issued to the respondent/accused by order dated 25/02/2009 is dispensed with. 2. It appears that the petitioner/Complainant had prosecuted the accused under Section 138 of the Negotiable Instruments Act, 1881. On 18/01/2008 an order to issue process was made by the learned JMFC. When the complaint was taken up on 24/03/2008, the Complainant was represented by its Advocate. Accused nos. 1 and 3 were duly served but accused no.2 was not served. However, none of the accused appeared before the trial Court. Thereafter, the Complainant did not remain present nor the accused, at the subsequent two hearings. On 14/05/2008 process fees were paid by the Complainant to enable the Complainant to issue NBW against accused nos. 1 and 3 and summons to accused no.2. On 3/07/2008, the Complainant remained present along with its advocate. It was then noticed that accused no.1 was a firm and accused no.2 was not served and the NBW issued against accused no.3 was returned un-executed. An order was made to issue fresh summons to accused no.2 and NBW to accused no.3 returnable on 18/09/2008. On this day, the Complainant remained absent and again on 10/10/2008. The learned Magistrate, therefore, proceeded to dismiss the complaint for non-prosecution. 3. Learned Counsel on behalf of the petitioner/Complainant submits that the advocate for the Complainant had taken the date as 18/10/2008 and not as 18/09/2008 and therefore the Complainant's advocate could not appear either on 18/09/2008 or 10/10/2008 when the complaint came to be dismissed for non-prosecution. Learned Counsel on behalf of the petitioner/Complainant submits that the Complainant ought not to suffer on account of the inadvertent mistake committed by its advocate. 4. Considering that none of the accused appeared before the trial Court at any time, it will be sheer waste of time to await the service of notice issued to them and, in the circumstances of the case, this application and the appeal can be disposed of without their presence. The Complainant ought not to suffer on account of the inadvertent mistake made by its advocate. 5. Considering the facts of the case and subject to the payment of Rs. 2,000/-, as costs, into the account of State Legal Services Authority, within a period of 10 days, the order dated 10/10/2008 dismissing the complaint is set aside and the complaint is restored to file. The learned Magistrate is directed to proceed further, in accordance with law. N. A. BRITTO, J. NH