:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPLICATION NO.1135 OF 2008 CRIMINAL APPLICATION NO.1135 OF 2008 CRIMINAL APPLICATION NO.1135 OF 2008 IN IN IN CRIMINAL APPEAL NO. OF 2008 CRIMINAL APPEAL NO. OF 2008 CRIMINAL APPEAL NO. OF 2008 AFL Limited ...Applicant/ Appellant. v. Uday Patel & Anr. ...Respondents. Mr.Sanjay Bhatia , adv. for the Applicant. Ms.Geeta Yadav i/by Mrs.Y.Y.Naik , advs. for th e Respondent No.1. Mr.A.S.Shitole, APP for the State. CORAM: CORAM: CORAM: R.V.More,J. R.V.More,J. R.V.More,J. DATE: 7th January, 2009. DATE: 7th January, 2009. DATE: 7th January, 2009. P.C. P.C. P.C. 1. Heard the learned counsel appearing for the respective parties. 2. Prima-facie, case is made out for grant of leave and, therefore, leave to file appeal is granted and appeal is admitted. 3. By consent of both the learned counsel, appeal is taken up for final hearing. 4. Applicant/Appellant is aggrieved by the order dated 21-11-2007 passed by the Metropolitan Magistrate, :2: 12th Court, Bandra, Mumbai whereunder his complaint under Section 138 of the Negotiable Instruments Act, 1881 was dismissed in default under Section 256 of the Cr.P.C. Brief facts necessary for disposal of the present appeal are as follows: 5. The applicant/original complainant lodged a complaint under Section 138 of the Negotiable Instruments Act, 1881 against the respondent no.1. Initially, the complaint was assigned to the learned Metropolitan Magistrate, 9th Court Bandra and was numbered as C.C.No.463/S/2000. After issuance of initial process, respondent No.1 appeared through an advocate. However, the case was adjourned for recording the plea of the respondent no.1/Accused. Thereafter, the case was transferred to 12th Court, Bandra and the same was re-numbered as C.C.No.180/S/2002. It appears that an advocate appearing on behalf of the respondent no.1 thereafter never appeared. Respondent no.1 also never appeared. Therefore, initially bailable warrant was issued and thereafter, at later stage even non bailable warrant was also issued against the respondent no.1 but this could not be executed for want of whereabouts of the respondent no.1. Even the application for proclamation was filed and the concerned police station has also filed a report accordingly. Application for attachment of the property of the respondent no.1 was also filed and the same was pending :3: at the time of passing the impugned order. The applicant’s/appellant’s criminal case was called out on 21-11-2007 but as the appellant as well as his advocate did not appear, therefore, same was dismissed in default under Section 256 of the Cr.P.C. The learned counsel appearing for the appellant submitted that the respondent no.1 was deliberately avoiding to remain present in the Court and, therefore, several steps were taken to secure his presence. He further submitted that the plea of the accused was not recorded. It is also submitted that the Appellant is diligent and he is ready and willing to pursue the matter and, therefore, in the interest of justice, the complaint deserves to be restored by quashing the impugned order. 6. On the contrary, the learned counsel for the respondent no.1 contested the appeal and supported the impugned order. It is submitted that the learned Magistrate rightly dismissed the complaint in default as the appellant and his advocate remained regularly absent. She further submitted that no case is made out for restoration and, therefore, prays that the appeal be dismissed. 7. Having heard the learned counsel for the respective parties and having gone through the impugned order and the compilation of documents annexed alongwith the leave application, in my view, the complaint :4: deserves to be restored by quashing and setting aside the impugned order. 8. Perusal of the dates given in the roznama reveals that on 5th June, 2007 the learned Magistrate was on leave. On the next date, i.e., on 3rd July, 2007, the appellant’s advocate was present, however, the case was adjourned for taking steps. On the next date, i.e., on 5-9-2007, the learned Magistrate was on leave and, therefore, the case was adjourned to 21.11.2007. On 21-11-2007, it is the case of the appellant that on that day, he and his advocate reached late to the Court and before they reached to the Court, complaint was called out and the same was dismissed in default. If above dates are considered then it is clear that the findings of the learned Magistrate that the appellant/complainant and his advocate are regularly absent is not factually correct. The documents on record show that the appellant is diligent and he has taken steps to secure the presence of the respondent no.1. Initially the respondent no.1 was represented by an advocate but at later stage he did not appear and, therefore, the appellant was required initially to obtain bailable warrant and later, non bailable warrant. Appellant was also required to obtain proclamation. The appellant also filed application for attachment of the property of the respondent no.1 which is pending. The above steps taken by the appellant prima-facie, show :5: that the respondent no.1 was avoiding to remain present in the Court. It is also important to note that the plea of the respondent no.1 is not recorded. 9. The appellant has given sufficient cause for his absence on 21-11-2007 when his complaint was called out. I have already observed that the appellant is diligent and has taken necessary steps to secure the presence of the respondent no.1. In these facts and circumstances and in the interest of justice, I am of the view that the complaint deserves to be restored by quashing and setting aside the impugned order. The impugned order dated 21-11-2007 passed by the learned Magistrate dismissing the appellant’s complaint in default under Section 256 of the Cr.P.C. is accordingly quashed and set aside and the complaint is restored to the file. Parties to the appeal shall appear before the learned Metropolitan Magistrate, 12th Court at Bandra on 9th February, 2009. (R.V.MORE, J.) (R.V.MORE, J.) (R.V.MORE, J.)