IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3413 OF 2008 WITH CRIMINAL APPLICATION NO.3414 OF 2008 Damodar Krishnaji alias Balasaheb Majgaonkar .. Applicant (In both the applications) Versus Chintamani Shridhar Tamboli & Anr. .. Respondents (In both the applications) Mr.V.B.Rajure for the applicant. Mr.Roshan for the respondent no.1. Mr.Y.S.Shinde, A.P.P for the State. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 27th February 2009. : 27th February 2009. : 27th February 2009. P.C.: . These are applications under sub-section 4 of section 378 of the Code of Criminal Procedure, 1973. The applicant in these applications is the complainant in complaints filed under section 138 of the Negotiable Instruments Act, 1881. In both the cases, the order of acquittal has been passed by the learned Magistrate by exercising powers under section 256 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the said Code). In Criminal Application No.3413 of 2008 the impugned order has been passed on 17th November 2007. (2) In the order the learned Judge has observed that the applicant and his advocate were absent and the applicant has not taken any steps in the matter from 20th March 2007. In Criminal Application No.3414 of 2008 the impugned order has been passed on the same date with a modification that the learned Judge has observed that the applicant has not taken steps from 20th July 2007. 2. The learned counsel appearing for the applicant has tendered on record the roznama of the proceedings of both the complaints. His submission is that the applicant was diligently prosecuting the complaints. He submitted that the learned Judge has taken a very harsh view of the matter by dismissing the complaints. He has placed reliance on certain decisions. The learned counsel appearing for the 1st respondent submitted that there is a complete neglect on the part of the applicant in prosecuting the complaints. His submission is that the learned trial Judge was justified in passing the orders under section 256 of the said Code considering total neglect on the part of the applicant. He submitted that the conduct of the applicant is so gross that no indulgence can be shown to the applicant especially when there is already an order of acquittal passed in favour of the 1st respondent. (3) 3. I have carefully considered the submissions. It must be noted here that the applications for condonation of delay were disposed of by order dated 04th February 2009. The said order records that parties are put to notice that if leave is granted, the appeal will be taken up for the final disposal immediately. Leave is granted. I have taken the appeal for final disposal. 4. I have perused the roznama of the proceedings which is tendered on record. The Criminal Application No.3413 of 2008 arises out of complaint bearing SCC No.154 of 2004. The perusal of the roznama shows that the complaint was filed in the year 2004. The first date fixed in the complaint was 16th February 2004. From time to time the complaint was adjourned. The roznama shows that on certain occasions non bailable warrants were issued against the 1st respondent accused. The roznama shows that on the basis of order dated 16th August 2005, non bailable warrant was issued to the accused. Even on 16th January 2006 the trial Court passed an order directing that non bailable warrant should be issued against the accused. On 20th January 2007, on application made by the accused, the non bailable warrant was cancelled. On 05th March 2007 the (4) complainant and 1st respondent were present and the case was adjourned to 11th April 2007. On 11th April 2007, 30th April 2007, 21st July 2007, 17th September 2007 and 20th September 2007 the applicant and his advocate were absent. On 17th November 2007, the applicant and his advocate were absent and therefore the impugned order was passed. The certified copy of the impugned order shows that the learned Judge has observed that from 20th January 2007 the applicant has not taken any steps. Perusal of the roznama shows that the applicant was not required to take any steps. In fact from the year 2004 even the plea of the accused was not recorded. 5. In the Criminal Application No.3414 of 2008 the complaint is SCC No.564 of 2005 and the first returnable date fixed in the complaint was 01st October 2005. The complaint was adjourned from time to time. On 07th February 2007, on the application made by the applicant non bailable warrant was issued against the 1st respondent. On 23rd July 2007, on application made by the 1st accused the non bailable warrant was cancelled. The roznama shows that on 23rd July 2007 and on 17th September 2007 the applicant and his advocate were absent. However, on the next date i.e on 28th September 2007 the applicant and his advocate were present. (5) Perusal of the certified copy of the order dated 17th November 2007 shows that the learned Judge has observed that the applicant has not taken steps from 23rd July 2007. From the roznama it appears that the applicant was not required to take any steps. 6. Turning back to the first case i.e complaint SCC No.154 of 2004, I find that from February 2004 up to 11th April 2007 the applicant and his advocate were regularly present. The complaint could not make progress as warrants were required to be issued against the 1st respondent. It is true that on 11th April 2007, 30th April 2007, 21st July 2007, 17th September 2007, 28th September 2007 and 17th November 2007 the applicant and his advocate were absent. This absence has to be appreciated on the background of the fact that initially for a period of almost three years the applicant has diligently remained present before the trial Court and has prosecuted the complaint. The complaint did not make any progress due to no fault on the part of the applicant. Even on the dates on which the applicant is shown as absent, the complaint is adjourned "for bail". 7. In complaint SCC No.564 of 2005 the roznama of the case shows that from the returnable date i.e 28th (6) September 2005 till 20th June 2007 the applicant was regularly present. Here again warrant was required to be issued to the 1st respondent on account of his absence. It is true that the applicant remained absent on 23rd July 2007, 17th September 2007 and 17th November 2007 but on 28th September 2007, the applicant and his advocate were present. The roznama shows that the applicant was diligently prosecuting the complaint and there is nothing on record to show that the hearing of the complaint could not make any progress on account of any default on the part of the applicant. In fact on the dates on which the applicant was absent the complaint is shown in roznama "for bail". 7. Thus these are not the cases where the applicant was negligent. In both the cases it cannot be stated that the hearing of the complaint was delayed due to any default on the part of the applicant. Therefore, in my view, the learned Judge has taken a very harsh view in both the cases by exercising power under section 256 of the said Code. Considering the large pendency of the cases under section 138 of the said Act in the Courts in Maharashtra, the complaints are required to be adjourned from time to time. The Courts can find fault with complainants only when it appears from the record of the (7) proceedings that the complaint could not make any progress on account of any default or persistant absence on the part of the applicant. Merely because the complainant remains absent on two or three dates that by itself is no sufficient reason to exercise power under section 256 of the said Code especially when no neglect can be attributed to the complainant. 8. It is true that the 1st respondent accused may suffer because of the restoration of the complaint. Therefore, in Criminal Application No.3413 of 2008 I am directing the applicant to pay costs of Rs.4,500/- to the 1st respondent. In the other Criminal Application I am directing the applicant to pay costs of Rs.3,000/- to the 1st respondent. It must be stated here that a demand draft drawn by the applicant in favour of the advocate appearing for the 1st respondent in the sum of Rs.7,500/- has been handed over by the advocate for the applicant in the Court. 9. Hence, I pass the following order: (i) The impugned orders are quashed and set aside. (8) (ii) The complaints bearing No.SCC 154 of 2004 and SCC 564 of 2005 are restored to the file of the learned Magistrate. (iii) The learned Magistrate will proceed with the complaints from the stage at which the same were pending on the date of passing the impugned order. (iv) It is made clear that amount of costs is already paid by the applicant. (v) The parties are directed to appear before the learned Magistrate on 04th April 2009 at 11.00 a.m. (A.S.Oka,J)