1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR CRIMINAL APPEAL NO. 136/2009 (Atul Laxminarayan Somani vs. (1) Yogesh s/o Bhaskarrao Baporikar and another ) Office Notes, Office Memorandum of Coram appearances, Court's orders of directions & Registrar's orders. Court's or Judges Order Mr. C.A.Joshi,Adv.for appellant Mr. S.V. Sirpurkar, Adv.for Resp. No.1 Mr. Rachana Wasnik,APP for Res.No.2 C ORAM : A.P. BHANGALE, J. DATED : 23rd September, 2009. 1. Heard learned counsel for the respective parties. 2. By this Appeal, the appellant/ original complainant challenged the validity, propriety and legality of the impugned order dated 17.11.2008 whereby the learned Chief Judicial Magistrate, Akola dismissed the Complaint on the ground of absence of the complainant and acquitted the respondent No. 1-accused as complainant was given last opportunity to prosecute the complaint. 3. Learned Advocate for the appellant invited my attention to the copy of order-sheets from 1.1.2008 until the impugned order was passed, indicating that the complainant was personally present when process was issued. Pursuant to the verification of complaint and documents, the process was issued on 7.2.2008 and, thereafter, the complainant was present through his Advocate until the case was adjourned from time to time till 16.10.2008. According to learned Advocate for the appellant, the complainant was represented by Advocate Shri Jagmalani, however, consequent upon his selection as Judge of the City Civil Court, Mumbai, he joined the service and due to communication gap between the complainant and his Advocate Shri Jagmalani, the complainant could not not remain present when the trial Court appears to have made noting that he is given last opportunity to prosecute his 2 complaint. Under these circumstances, learned Advocate for the appellant pleaded that there was good excusable ground for the complainant as he was represented by his Advocate on the adjourned dates from time to time as well as his Advocate could not remain present when the trial Court decided to give last opportunity on 3.11.2008 to adjourn the case until 17.11.2008. Learned Advocate also brought to my notice the certified copy of the noting dated 3.11.2008 which actually mentioned adjourned date as 20.11.2008; so also mentions the date 17.11.2008 time 4.30 p.m. For this reason also, it must be noted that there was no justification for the trial Court to dismiss the complaint on 17.11.2008 as the noting dated 3.11.2008 also mentions the dated 20.11.2008. As such, the impugned order requires interference. 4. The impugned order dated 17.11.2008 passed by the learned Chief Judicial Magistrate, Akola is quashed and set aside. The matter is remanded back to the trial Court to proceed further with the Complaint in accordance with law, after issuing fresh notice to the parties. Appeal is allowed accordingly. JUDGE. sahare