1 jpc/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2023 OF 2009 Mr. Gangadhar Ramchandra Pasulkar .. Applicant Vs. Shri Devendra Vishwas Kale .. Respondent Shri Uday P. Warunjikar for the Applicant Shri Deepak c. Natu i/b M/s N. Deepak & Co. for Respondent No.1 Shri P. A. Pol, APP for the Applicant -State CORAM :SMT. MRIDULA BHATKAR, J. DATE : 21st July, 2009. P. C. 1. Heard. 2. This is an application for leave to appeal under Section 378(4) filed Applicant- Original Complainant against the order of dismissal of the Criminal Complaint dated 7th August, 2009, passed by the 7th Jt. CJJD & JMFC,Thane under Section 256 of the Criminal Procedure Code. 3. The complaint was filed under Section 138 of the Negotiable Instrument Act. After issuance of process, the accused have appeared before the Learned Judge and subsequently remained absent. So the prayer was made for warrant and the warrant was issued against the accused-Respondent. However, the Applicant remained absent on 7.8.208 and, therefore, the Learned JMFC has dismissed the complaint. 2 4. The Applicant submits that the the matter was appearing on the Board under the caption Unready matters and was not ready “ ” for the hearing. It was also pointed out that the report of the warrant was awaited. The learned counsel appearing for the applicant has submitted that under such circumstance, the learned Judge has erred in dismissing the matter by invoking his power under Section 256 of the Criminal Procedure Code. During the course of argument, the learned counsel has pointed out certain overwriting and manipulation about the date and also about the presence of the parties. 5. The learned counsel appearing for the respondent No.1 has opposed the Application/appeal and has submitted that as per Roznama, both the the accused and his lawyer were absent and so, the learned JMFC has rightly dismissed the complaint. He has further submitted that there is no ground to set aside the order of dismissal of the complaint and that the second complaint is permissible within the prescribed period. 6. Learned Counsel appearing for the appellant also pointed out order the dated 7th October, 2007 in the said Criminal Complaint by which the learned Judge has accepted the compromises purshis between the parties. Moreover, when the compromise purshis was on record, then the learned judge should not have taken decision of dismissing the Complaint of a senior citizen of the age 77 years. 7. Perused Rozqanama, which shows that the matter was appearing on the Board of Unready Matters and the report of the warrant 3 was awaited. Thus the matter was not ready for hearing and the Roznama discloses that the complainant and his lawyer were present on the earlier date. It is not a case where no steps were taken by the complainant. Hence the order of dismissal passed by the learned Magistrate is not legal and is set aside. 8. In the course of the argument, both the Advocates have pointed out date given in the complaint which is appearing at Sr. No. 56 on the board of 7.8.2008 and also the manipulation in Roznama dated 7.8.2008 in respect of absence/presence of the complainant and his Advocate. Learned JMFC, is directed to take note of this and it is necessary to take steps against the person concerned. The Registrar Judicial to communicate this order to the Ld. JMFC. 9. In the above circumstances, , the Application for leave to appeal is allowed. The Appeal is admitted and allowed. The order dated 7.8.2009 is set aside and the complaint is restored. (MRIDULA BHATKAR, J.)