Sns 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.5150 OF 2010 IN CRIMINAL APPEAL NO.1209 OF 2011 Smt. Sarojben A. Gajera Constituted Power of Attorney of Shri Ashok Haribhai Gajera Hindu, Adult, Occ: Business, R/o. 31, Kalpa Vrusha, 27, B.G.Kher Marg, Mumbai 400 006 ..Applicant. (Org. Complainant) v/s. 1 The State of Maharashtra 2 Mr. Sanjay D. Satam Adult, Indian Inhabitant, Residing at B-702, Sidhi Vinayak Chawl, Somwari Bazar, Malad (W), Mumbai 400 064 and doing business at V Care, 3/A, Ali Chambers, Ground Floor, Fort, Mumbai- 400 023 ..Respondents. (R.No.2/Org.Accd.) Mr. Suraj D. Almeida, adv. for the Applicant. Ms G.P.Mulekar, APP for the respondent/State. CORAM : J.H.BHATIA, J. DATE : 16th September, 2011 ORAL JUDGMENT: 1 Heard the learned counsel for the applicant. None for the respondent no.2 though served. 2 The applicant seeks leave to prefer appeal. Leave granted. Appeal be registered . Sns 2 3 Notice issued to the respondent no.2 clearly indicated that the matter would be finally disposed off at the admission stage. In view of the facts and circumstances of the case, the appeal itself is taken for final disposal immediately. 4 Perused the copy of the record and proceedings of the trial Court. The Criminal Case No.320/SS/2009 was dismissed on 1.9.2010 on the ground that the applicant/complainant had failed to take effective steps for the further progress of the matter and on that day, the complainant and his advocate were absent. In the result, case was dismissed under Section 256 of the Cr.P.C. and the accused was acquitted. Proceeding sheet of the matter reveals that on 17.7.2009, the order was passed to issue process returnable on 16.10.2009. On that day, advocate for the complainant did not appear and did not collect summons for service and the case was adjourned to 8.2.2010. Thereafter, summons was issued and was returnable 28.5.2010. Summons was actually issued by the office. The summons was not returned after service on the next date. On 28.5.2010, the learned Magistrate was on leave and the case was adjourned to 1.9.2010. Record does not reveal that even by 1.9.2010, summons was returned back after service. There is nothing on record to show that the complainant was allowed private service by R.P.A.D./Speed-Post/Courier or by any other means and that responsibility of the service was put on the Sns 3 complainant. Once summons was issued to the police for service, it was the responsibility of the police to return summons with or without service. On the due date if the summons was not returned back, it cannot be stated that the complainant had failed to take effective steps for further progress of the matter. It is true that on 1.9.2010, the complainant and his advocate both were absent but on that day, matter was fixed only for return of the summons and if the service would be complete, for appearance. In my opinion, the order of acquittal of the accused under Section 256 of the Cr.P.C. can not be supported particularly when in-spite of summons sent, the police had failed to serve and to return the same. 5 Therefore, appeal is allowed. The impugned order is set aside . The Criminal Case is hereby remanded back to the Metropolitan Magistrate 14th Court, Girgaum for the trial and disposal as per law. (J.H.BHATIA, J.)