..(1).. IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3116 OF 2006 [LEAVE TO FILE APPEAL] IN CRIMINAL APPEAL NO. OF 2006 Central Bank of India. ..Applicant. Versus Mr.Kashinath Jadhav & Anr. ..Respondents. .. Mr.P.G.Kinikar, Adv. i/b. Smt.Rathina Maravarman, Adv. for the Applicant. Mr.M.K. Kocharekar, Adv. for Respondent No.1. Mr.Y.M.Nakhawa, APP, for the State. .. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : JANUARY 16, 2008. DATED : JANUARY 16, 2008. DATED : JANUARY 16, 2008. P.C.: 1. Heard the learned Advocate for the Applicant-orig.complainant, the learned Advocate for respondent No.1-orig.accused and the learned APP for respondent No.2-State. 2. The applicant is the complainant in a complaint under Section 138 of Negotiable Instrument Act. By order dated 8th June, 2005, the learned Metropolitan Magistrate, 13th Court, Dadar, Mumbai, dismissed the complaint by exercising the power under Section 256 of the Code of Criminal Procedure, 1973 which has resulted in acquittal of respondent No.1. Hence this ..(2).. application for leave to file appeal. 3. I have perused the roznama. From the roznama it is seen that only on 8th June, 2005 the applicant i.e. complainant was absent and on that day itself the complaint came to be dismissed. A perusal of the roznama shows that the applicant was diligently prosecuting the complaint. 4. In order to appreciate the controversy involved in this matter, it is necessary to reproduce the provisions of Section 256 of Cr.P.C., which is as under : 256. Non-appearance or death of complainant.- (1) If the summons has been issued on complaint and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused unless for some reason he ..(3).. thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with is attendance and proceed with the case. (2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death. . A brief perusal of the above section would indicate that the section is mandatory in nature and if the complainant does not appear on the date of hearing the Magistrate shall acquit the accused. However, the latter part of the section clearly indicates that the Magistrate has another option i.e. to adjourn the hearing of the case to ..(4).. some other date. The third option which is available to the Magistrate under this section is that, the Magistrate may proceed with the case if in the opinion of the Magistrate, the personal attendance of the complainant is not necessary. 5. The reasons for absence of the complainant can be numerous. Sometimes the reasons may be beyond the control of the complainant. Even though the Magistrate is not bound by the provisions of the statute to do so, there is nothing wrong in adjourning the case to another date so that the Magistrate may satisfy himself that the absence of the complainant was not due to lack of diligence, or if the complainant’s presence is not required on the particular day, the Magistrate may dispense with the attendance of the complainant and proceed with the case. In all such cases, the Magistrate is expected to take stock of the whole situation before he uses his discretion and decides the course to be followed. The Magistrate should not view the absence of the complainant, as a short cut for disposal of the case. Under Section 256 Cr.P.C. dismissal of a ..(5).. complaint for non-appearance is one of the options given to the Magistrate, however, that is not the only option and there are other options which the Magistrate can exercise. He has the option to adjourn the hearing of the case to some other date. He has also the option to dispense with the attendance of the complainant and proceed with the complaint. When a statute vests various options with the Magistrate, it is necessary that the option which he adopts should be exercised judiciously and to advance the cause of justice. 6. In my view, the learned trial Judge ought to have granted one more opportunity to the applicant to remain present and to prosecute the complaint. In this view of the matter, the order impugned deserves to be set aside and the complaint will have to be restored. 7. Hence the following order is passed : (i) The impugned order dated 8th June, 2005 is quashed and set aside and the complaint C.C. No.1825/SS/2005 is restored to the file of ..(6).. the learned Metropolitan Magistrate, 13th Court, Dadar, Mumbai. (ii) The parties to appear before the learned Magistrate on 31st March, 2008. (iii) Application is accordingly allowed. (iv) Writ to be sent immediately. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)