1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.1116 OF 2009 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Coram: P.R.Borkar, J. Date :March 11, 2010 1. Heard Shri S.B.Chaudhary, Advocate for the petitioner and Shri Anirudha Nimbalkar Advocate, holding for Advocate Shri V.D.Salunke, for the Respondent. 2. Rule. With consent of learned Advocates for the parties, rule made returnable forthwith and the writ petition is taken up for final disposal at admission stage as per the order passed on 16.12.2009. 3. Present petitioner has filed complaint against Respondent for committing offence punishable under Section 138 of Negotiable Instruments 2 Act, in the court of J.M.F.C., Washi. It was registered as S.C.C. No.892 of 2008. On 8.10.2009, the matter was kept for recording of evidence of the complainant. However, on that day the complainant filed an application (Exhibit 22) seeking adjournment on the ground that he wanted to produce certain documents as evidence but those documents were not readily availabale with the petitioner. The copy of the said application is at Exhibit B with present petition. That application came to be rejected as, according to the learned Magistrate, there were no satisfactory reasons. With the result, on 8.10.2009 itself, the complaint came to be dismissed. 4. It does not appear that the complainant was absent on 8.10.2009. In fact, roznama, the copy of which is at Exhibit "X" clearly indicates that the complainant was present in court on that day. 3 5. In the circumstances, the impugned order dismissing the complaint in default was wrong. The learned Magistrate, if he was inclined to reject the application for adjournment, ought to have called upon the complainant to enter into witness box and lead evidence. The complainant having been present in the court and having not declined to enter into witness box, dismissal of the complaint was incorrect which is a good ground for restoration of the complaint. 6. In the result, I am inclined to allow this writ petition. However, at the same time, since Respondent is unnecessarily dragged to the High Court and required to engage Advocate, writ petition deserves to be allowed on condition of costs. Consequently, impugned order dated 8.10.2009 dismissing S.C.C. NO.892 of 2009 is hereby set aside on petitioner paying Rs.2000/- as costs to the Advocate for the Respondent. The learned Magistrate is directed to restore S.C.C. No.892 of 4 2008 to the file and proceed with the same in accordance with law. Parties before this court agree to appear before the trial court on 6.4.2010 and cooperte the trial court in early disposal of the matter. 7. Writ petition disposed of. Rule made absolute, accordingly. Date: 11/03/2010 (P.R.BORKAR, J.) pnd/criwp1116.09