{1} CWP No.727/2009 drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.727 OF 2009 Smt.Nirmala Popatrao Aahirrao PETITIONER Age-53 years, Occ-Household Through General Power of Attorney Shri.Manish Popatrao Aahirrao Age-33 years, Occ-Pvt Service and Business R/o Plot No.56, Sector-2 Pramod nagar, Dhule VERSUS Ravindra G.Khadkikar RESPONDENT Age-43 years, Occ-Service R/o Gramvikas Asthapana Shakha 1st Floor, Main Building, Mantralaya, Mumbai ....... Mr.A.K.Tiwari, Advocate for the petitioner Mr.S.S.Panale, Advocate for the respondent ....... [CORAM : A.V.POTDAR, J.] DATE: 30 th September 2011 ORAL JUDGMENT: 1. Rule. Rule made returnable forthwith. Heard finally by consent of the parties. 2. Present petition is directed against the order dated 01.12.2008 passed below Exhibit-1 by JMFC, Chalisgaon in SCC {2} CWP No.727/2009 No.1400/2006. By the impugned order, the JMFC, Chalisgaon has dismissed the complaint for default. 3. Heard learned counsel for the petitioner followed by learned counsel for respondent-accused. Perused the record. 4. Perusal of the record shows that the petitioner has filed complaint u/s 138 of the Negotiable Instruments Act before JMFC, Chalisgaon. After recording verification of the petitioner, process was issued by JMFC, Chalisgaon on 04.12.2006. It appears that after great efforts the process was served on the respondent-accused on 08.01.2008. Even after service of process, respondent – accused did not attend the Court and hence bailable warrant was issued against respondent-accused, which was pending for more than 3 and half years. The complainant- petitioner was under bonafide impression that the report of execution of warrant on respondent-accused is still awaited and hence petitioner did not remain present in the Court, which resulted in dismissal of the complaint for default on 01.12.2008. 5. It appears that on the date, when the order impugned {3} CWP No.727/2009 in the petition came to be passed, the complaint was not listed for evidence so also the report of execution of warrant issued against respondent-accused was not received in the Court. When in fact, if the presence of the complainant is not required as mandate in law and if the JMFC, has dismissed the complaint on that ground and discharged the respondent=accused then certainly it is an abuse of process of law. When the complaint is dismissed for default, when the same was not listed for recording evidence of the complainant then the same requires to be quashed and set aside. 6. In the result, the petition is allowed. Order dated 01.12.2008 impugned in the present petition is hereby quashed and set aside. Rule is made absolute in terms of prayer clause “C”. Parties are directed to appear before the trial court on 15.10.2011. In case respondent-accused failed to appear before the Court, then trial court to take requisite steps to secure presence of respondent- accused and disposed of the complaint in accordance with law. [A.V.POTDAR, J.] drp/B11/cwp727-09