cra4306.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.4306 OF 2010 Shivaji s/o Narayan Shiralkar, R/o-Shivaji Chowk, Latur, Tq-Latur, Dist-Latur. ...APPLICANT. VERSUS Dhansing H. Rathod, R/o-Kolegaon Tanda, Tq-Renapur, Dist-Latur. ...RESPONDENT. ... Shri.N.D. Kendre Advocate h/f. Shri.P.G. Mahalankar Advocate for Applicant. Shri.D.M. Mane Advocate for Respondent sole. ... CORAM: SHRIHARI P. DAVARE, J. DATE : 10TH JUNE, 2011. PER COURT : 1. Heard learned counsel appearing for the respective parties. cra4306.10 2 2. This is an application preferred by the Applicant seeking leave to Appeal challenging the order of dismissal of complaint filed by the Applicant, dated 30th September, 2010, thereby acquitting the Respondent (original accused) under Section 256 of the Code of Criminal Procedure. 3. Apparently, the Applicant herein, who is original complainant, has filed the complaint against the accused before the learned Chief Judicial Magistrate, Latur under Section 138 of the Negotiable Instruments Act for the dishonour of cheque of Rs.2,00,000/- (Rupees Two Lakh), issued by the accused to him on 15th April, 2007. After recording verification, process came to be issued against the accused who appeared therein. However on 30th September, 2010, the Applicant/complainant has filed application for adjournment as well as accused was also absent and he also filed application for exemption on the same day. However the learned trial Judge passed cra4306.10 3 following order on the application filed by the Applicant: "Complainant and his advocate absent when called. Record shows that complainant is prolonging matter for no reason as objected by accused. No medical certificate is annexed. No proper stamp is affixed. Hence application is rejected." 4. Moreover the learned trial Court also passed order on 30th September, 2010, on the complaint as follows: "Complainant and his advocate absent. Matter is fixed for hearing since 31.8.2009 i.e. since recording plead. Despite given sufficient time complainant failed to proceed matter. Hence complaint stands dismissed in default for want of prosecution and disposed of cra4306.10 4 accordingly. Accused acquitted u/s. 256 of Cr.P.C. His bail stands cancelled." 5. Thus it is apparent that the complaint filed by the Applicant herein appears to have been dismissed in default and the accused has been acquitted under Section 256 of the Code of Criminal Procedure, which is a technical dismissal and not on merits, hence the matter requires consideration. Therefore Application seeking leave to file Appeal is allowed and the present Application be treated as Appeal and Appeal be registered accordingly. 6. Admit. Shri. Mane, learned counsel for Respondent waives service of notice, after admission. 7. Since no evidence has been adduced in the present matter, paper book stands dispensed with and the hearing of the Appeal is expedited. cra4306.10 5 8. By consent of the learned counsel appearing for the respective parties, Stand Over to 1st July, 2011 at 2.30 p.m., for final hearing. [SHRIHARI P. DAVARE, J.] asb/JUNE11/cra4306.10