mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.705 OF 1997 Deepak Laboratories Appellant versus Sau.M.Nitin More & anr. Respondents R.M.Haridas i/by P.N.Joshi for appellant. Y.S.Shinde, APP for the State. CORAM : A.S.OKA, J. DATE : 12th March 2009 JUDGEMENT : 1. The submissions of the learned advocate for the appellant are heard. None appears for the 1st respondent. The appellant is the complainant in a complaint filed under section 138 of the Negotiable Instruments Act, 1881. The learned Magistrate by order dated 20th August 1996 has dismissed the complaint by exercising power under section 256 of the Code of Criminal Procedure, 1973. 2. The learned counsel appearing for the appellant has taken me through the Roznama of the proceedings and submitted that there was no warrant for exercising the power under section 256 of the said Code. He submitted that the learned Judge has taken a very harsh view of the matter. 3. I have perused the Roznama of the proceedings. On 3rd April 1995 the Court issued process. The complaint remained pending for some time for return of summons. On 21st November 1995, non bailable warrant was issued to the accused. On 17th April 1996 the accused appeared through an advocate and sought cancellation of the non bailable warrant. The warrant was cancelled. On 20th May 1996 both the appellant and the accused were absent. Plea of the accused was recorded through his advocate. On 15th July 1996 though the appellant was absent, his advocate was present. The application for exemption made by the accused was rejected. On the next day i.e. on 18th July 1996, the complainant was present alongwith his advocate. On application made by the appellant, the case was adjourned to 20th August 1996. On the adjourned date i.e. on 20th August 1996 the complaint has been dismissed by passing the impugned order. 4. A perusal of the Roznama shows that the appellant diligently prosecuted the complaint. Hearing of the complaint was delayed as summons was not served and ultimately a non bailable warrant was issued to the accused. The non bailable warrant was served on 17th April 1996. The same was cancelled and bail procedure was completed on 20th May 1996. This is not a case where there is a persistent default on the part of the appellant. Learned Trial Judge has taken a very harsh view of the matter by dismissing the complaint. In my view, the appellant deserves to be granted one more opportunity to prosecute the complaint. Hence I pass following order :- (a) The impugned judgement and order dated 20th August 1996 is quashed and set aside; (b) The Criminal Case No.223 of 1995 is restored to the file of learned Magistrate; (c) The learned Magistrate will issue a fresh summons to the accused and will thereafter proceed with the complaint from the stage at which it was pending; (d) The appeal is allowed in the above terms; (e) Writ be sent immediately. (A.S.OKA, J.) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.705 OF 1997 Deepak Laboratories Appellant versus Sau.M.Nitin More & anr. Respondents R.M.Haridas i/by P.N.Joshi for appellant. Y.S.Shinde, APP for the State. CORAM : A.S.OKA, J. DATE : 12th March 2009 JUDGEMENT : For the reasons separately recorded, the following order is passed :- (a) The impugned judgement and order dated 20th August 1996 is quashed and set aside; (b) The Criminal Case No.223 of 1995 is restored to the file of learned Magistrate; (c) The learned Magistrate will issue a fresh summons to the accused and will thereafter proceed with the complaint from the stage at which it was pending; (d) The appeal is allowed in the above terms; (e) Writ be sent immediately. (A.S.OKA, J.)