- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPEAL NO.684 OF 1997 APPEAL NO.684 OF 1997 APPEAL NO.684 OF 1997 K.N.Jayaram ...Appellant vs. M/s.Nutrit Products and Anr. ...Respondents Mr.Ashsis Sawant i/b Mr.R.S.Chitnis for the Appellant Mr.J.P.Yagnik A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : MARCH 6,2009 : MARCH 6,2009 : MARCH 6,2009 P.C.: P.C.: P.C.: . None appeared for the appellant on 3rd March 2009 when the appeal was called out for final hearing. Today, appeal is listed under the caption of "Dismissal". Appeal is against an order of acquittal. Today when the appeal is called out, none appears for the appellant. It appears that the appellant is not interested in prosecuting the appeal. Accordingly, appeal is dismissed for non prosecution. MENTIONED AT 3.00 P.M. 1. On oral prayer, the appeal is restored. Heard Advocate for the appellant. This is an appeal under section 278 of the Code of Criminal Procedure,1973. The appellant filed a complaint alleging commission of offence under section 78 and 79 of the Trade and Merchandise Marks Act,1958. Process was issued on the said complaint under section 78 and 79 of the - 2 - said Act of 1958. The order of acquittal has been passed by the learned Metropolitan Magistrate in exercise of power under section 256 of the Code of Criminal Procedure,1973. 2. The submission of the learned counsel for the appellant is that the Appellant could not remain present because the office of the appellant was shifted. He pointed out that the Advocate for the Appellant was always present. He pointed out that the first respondent accused never appeared before the learned Magistrate. He submitted that the learned Magistrate has taken a very harsh view of the matter by dismissing the complaint. He submitted that the meritorious case of the applicant cannot be defeated on the ground of occasional default on the part of the appellant. 3. I have carefully considered the submissions of the applicant. I have perused the Roznama of the proceedings. Process was issued on 19th February 1990. Thereafter, the case was adjourned from time to time till 15th July 1996 when the impugned order was passed. Perusal of the Roznama shows that during this span of 6 years, except on 18th March 1991 the appellant/complainant was all along absent. It is true that the Appellant was represented by his Advocate on some dates. Nevertheless there is persistent absence on the part of the appellant. Even assuming that the office of the appellant was shifted, there is no justification for long - 3 - absence for a period of five years and more. The Roznama shows that the appellant was not diligently prosecuting the complaint. 4. In view of the aforesaid conduct and in view of the fact that the complaint is of the year 1990, no case is made out for interference. The learned Magistrate was justified in exercising power under section 256 of the said Code. There is no merit in the Appeal and the same is accordingly dismissed. JUDGE JUDGE JUDGE