1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Criminal Revision No. 10/2011 Arvind Rajaramji Gulhane V/s. M/s. Anand Finance Proprietor and anr. ----------------------------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. ----------------------------------------------------------------------------------------------------------- Mr ٌS. C. Bhalerao, Adv for applicant Coram: A. P. Bhangale, J Dated: 7th June 2011. 1. By this application preferred under Section 397 read with 401 of Criminal Procedure Code, the Revision Applicant prayed for quashing and setting aside the order passed in Criminal Revision Petition No. 66/2005, by Ad-hoc Additional Sessions Judge, Yavatmal, on 20/10/2010. It is contended that the learned Trial Magistrate in Summary Criminal Complaint Case No. 1483/2003, dismissed the complaint on the ground of absence of the complainant by order dated 02/08/2003. The complainant aggrieved by the dismissal of the complaint from the Criminal Revision Application No. 66/2005 before learned Adhoc Additional Sessions Judge, Yavatmal, who decided to allow the Revision Application by setting aside the order dated 02/08/2003. The dismissal of the complaint on the ground of absence of the complainant which was passed by the Judicial 2 Magistrate, First Class, in Summary Criminal Complaint Case No. 1483/2003, subject to deposit of cost of Rs. 2000/- in the Court by the complainant. 2. The learned Advocate for the revision applicant (original accused) contended that, the respondent-complainant had filed number of complaints under Section 138 of the Negotiable Instruments Act and the learned Trial Magistrate had after recording absence of complainant on 02/05/2003 rightly dismissed the complaint on 02/08/2003 on the ground of absence of the complainant since the complainant was absent. According to the learned advocate for the revision applicant by the impugned judgment and order dated 20/10/2010 learned Adhoc Additional Sessions Judge committed error of law to pass impugned judgment and order by allowing the revision application in Criminal Revision Petition No. 66/2005. 3. Learned advocate for the respondent no. 1, opposed the revision petition and contended with reference to paragraph 9 of the impugned judgment and order that, the advocate who was appointed by the complainant to represent him did not inform the due date 02/08/2003 to the complainant therefore the complainant could not attend the Court of learned Judicial Magistrate First Class, Yavatmal, for want of knowledge. For the mistake of advocate, party should not suffer although the complainant could have made an inquiry with the advocate about the adjourned date. Advocate for complainant is not supposed to visit office or house of complainant for informing the date. The advocate could have used alternative mode of 3 communication such as telephone, mobile, e-email etc., to inform the due date to the complainant. 4. Be that as it may, by the impugned order, the cost of Rs. 2000/- was imposed on the complainant for remaining absent on 02/08/2003 as condition for setting aside the order of dismissal of the complaint on the ground of absence of the complainant. I have perused the impugned judgment and order. Dismissal of the complaint for absence of the complainant is drastic and such powers ought not to be exercised merely on the ground of absence of the complainant as it may be possible due to communication gap with his lawyer and therefore he may not have attended court on the date of hearing. Opportunity to contest the case in the interest of justice is necessary particularly when the complainant was not informed by his advocate about the date of hearing. The client need not suffer on account of mistake of the advocate. Normally, therefore, complainant is entitled to have an opportunity to prosecute the complaint on merits in view of the impugned judgment and order by the learned Adhoc Additional Sessions Judge, Yavatmal. Opportunity to the complainant to prosecute the complaint on merits subject to cost be deposited is just and proper and need no interference. The Revision Application is dismissed. JUDGE Punde