IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.776 OF 2007 Mr.Sanjay Mahadeo Paranjape )..Appellant Versus Mr.Sudhakar Dinkar Gaikwad & Anr. )..Respondents ---- Mr.M.K.Kocharekar for the appellant. Mrs.M.H.Mhatre APP for the State. ---- Coram : R.S.Mohite,J Coram : R.S.Mohite,J Coram : R.S.Mohite,J Date : 22.08.2008. PC 1. Heard Advocate for the appellant. Advocate for the respondent absent. 2. This is an appeal filed by the original complainant. The complainant had filed a complaint under Section 138 of Negotiable Instruments Act. The impugned order has been passed on 6.11.2004 and is as follows :- " The Complainant and Counsel are absent. Accused also absent. NBW issued for the second time against the Accused has not returned served/unserved to the court by police. In the result presence of the Complainant before the court for making progress or securing the presence of : 2 : Accused before court was extremely necessary. Complaint is old one also. As such in default to secure the presence of Accused before court by Complainant, the complaint stands dismissed. Accused discharged and set at liberty. Proceedings closed." 3. The record indicates that earlier the matter was on board on 11.8.2004, 2.9.2004 and 5.10.2004. On 11.8.2004 the complainant was present. On 2.9.2004 complainant was absent but his Advocate was present and on 5.10.2004 complainant was absent but his Advocate was present. This also clear that the duty of securing the presence of accused is on the State. If the NBW could not have been executed, further steps of proclamation should have been taken. It appears that the complainant’s Advocate remaining present consistently. In the circumstances, in my view, this is a fit case for allowing the appeal. Appeal is therefore, allowed. The impugned judgment and order passed by the JMFC, Mahad, is set aside and the complaint is restored to file. The Court to take further steps to secure the presence of the accused and on securing the presence, will deal with the complaint and disposed it off on its own merits. Appeal stands disposed off. (R.S.Mohite,J) (R.S.Mohite,J) (R.S.Mohite,J)