[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLN.NO.4328 OF 2006 IN CRIMINAL APPEAL NO. OF 2006 Mr.Kirti Bhimchand Bheda. ..Applicant. Vs. M/s.Lovely Wear and 3 Ors. ..Respondents. ... Mr.K.N.Bhatia, Adv. for the applicant. Mr.Prakash Naik, Adv. for respondent Nos.1 to 3. Mr.Y.S.Shinde, APP, for the State-respondent No.4. ... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : 3rd July, 2008 DATE : 3rd July, 2008 DATE : 3rd July, 2008 P.C. P.C. P.C. 1. Heard the learned advocate for the applicant-orig.complainant and the learned Advocate for the respondents-orig.accused. 2. The applicant has filed complaint against the respondents under Section 138 of Negotiable Instruments Act. As the applicant remained absent, the complaint came to be dismissed for want of prosecution. Being aggrieved thereby, this application for leave to file appeal is filed. [-2-] 3. In order to appreciate the controversy involved in this matter, it is necessary to reproduce the provisions of section 256 of Cr.P.C. 256. Non-appearence or death of complainant:- (1) If the summons has been issued on complaint and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other day. . Provided that where the complainant is represented by a pleader or by the office conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) The provisions of sub-section (1) shall, so [-3-] far as may be, apply also to cases where the non-appearence of the complainant is due to his death." 4. A brief perusal of the above section, would indicate that the section is mandatory in nature and if the complainant does not appear on the date of hearing, the Magistrate shall acquit the accused. However, the latter part of the section clearly indicates that the Magistrate has another option i.e. to adjourn the hearing of the case to some other date. The third option which is available to the Magistrate under this section is that, the Magistrate may proceed with the case if in the opinion of the Magistrate, the personal appearance of the complainant is not necessary. 5. The reasons for absence of the complainant can be numerous. Sometimes the reasons may be beyond the control of the complainant. In the present case, as the complainant was sick, he could not remain present. It is seen that the complainant was absent on only one date and on the second date the complaint came to be dismissed. No doubt, fault cannot be found with the learned Magistrate [-4-] who on seeing that the complainant was absent on 30.9.2006, dismissed the complaint. However, especially looking to the facts of this case, it is seen that no fault can be found with the complainant for remaining absent. Looking to this fact, I am of the opinion that in the interest of justice, it is necessary to restore the complaint. Hence, the complaint is restored. 6. The learned Magistrate is directed to proceed with the trial of the case after issuance of formal notices to both the parties of the next date to be fixed in the case. 7. Application and appeal are disposed of in the above terms. [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.]