- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.875 OF 2006 APPLICATION NO.875 OF 2006 APPLICATION NO.875 OF 2006 Small Industries Development Bank of India ...Applicant vs. Peacock Industries Ltd. & Anr. ...Respondents Mr.Kalpesh Parekh i/b Pragna Thakkar & Co. for the applicant Ms A.T.Javeri A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : FEBRUARY 26,2009 : FEBRUARY 26,2009 : FEBRUARY 26,2009 JUDGMENT: JUDGMENT: JUDGMENT: 1. The learned counsel for the applicant states that in terms of the order of this court a notice for final disposal has been duly served to the 1st respondent and an affidavit of service has been filed. In view of this statement, the matter is taken up for final disposal at admission stage. None appears for the 1st respondent. 2. The applicant filed a complaint in the court of 37th Metropolitan Magistrate at Bombay under section 138 of the Negotiable Instruments Act,1881. By order dated 27th December 2004 passed in exercise of powers under section 256 of the Code of Criminal Procedure,1973, the learned Magistrate has acquitted the first respondent on the ground that the complainant (applicant) and his Advocate were absent. The learned counsel for the applicant submitted that the roznama of the proceedings shows that the applicant was diligently prosecuting the complaint. He pointed out that in fact the - 2 - applicant was compelled to file an application for issuing warrant against the accused. He invited my attention to paragraph 10 of this application by pointing out that the Advocate appointed for the applicant was absent. He pointed out that the junior colleague of the Advocate lost track of the case and he could not inform the date fixed to the applicant. He submitted that the applicant deserves to be given an opportunity to prosecute the complaint on merits. He has placed on record a certified copy of the roznama of the case for the perusal of the court. He has also placed on record a typed copy of the roznama for consideration of the court. 3. I have carefully considered the submissions. I have perused the averments made in the application and the certified copy of the roznama. As narrated above, the order of acquittal was passed on 27th December 2004. As stated earlier, the certified copy of the roznama of the complaint has been tendered on record. The first item on the first page of the roznama is of 17th May 2004. On the first page after the roznama dated 17th May 2004, roznama of 3rd July 2004, 2nd august 2004, 8th October 2004 appears. On the immediately next page the roznama of 27th December 2004 appears. On the third page, I find that roznama of 17th December 2002 onwards is noted. On the last page, there is roznama from 4th June 1997 till 20th February 2000. the certified copy does not - 3 - contain entries in a chronological order. 4. I have noticed that not only in this case but in several cases that the roznama is maintained by the courts of the Metropolitan Magistrates in the city of Mumbai, in a very shabby manner which is not in conformity with the Criminal Manual. Chapter III of the Criminal Manual issued by this court makes a provision for recording roznama. It will be necessary to refer to the relevant provisions of Chapter III. Paragraph 2 of the said Chapter deals with Roznama. Sub clause (ii) of paragraph 2 records that the object of Roznama is to show in concise form the proceedings taken in each case with reference to each date fixed therein. It is to be a faithfully history of the case and must contain a correct list and description of the exhibits. It further provides that at the same time, it should be so drawn up as to show all the details of the case at one view and yet be as concise as possible. A form of Roznama has been prescribed by the Chapter II. I find that the courts of Metropolitan Magistrates in Mumbai are not maintaining the roznama in the form prescribed by the Criminal Manual. As per the said provision of the Criminal Manual, roznama must contain correct list and description of Exhibits. All the criminal courts in the State are abiding by the said provisions incorporated in the manual. I find that in the Roznama maintained by the courts of the Metropolitan Magistrates in Mumbai, the - 4 - description of exhibits is never incorporated. The Chief Metropolitan Magistrate will have to take a note of this aspect and issue necessary directions in that behalf for bringing this aspect to the notice of all the Metropolitan Magistrates. 5. Now coming to the facts of the case, the complaint has been filed in the year 1997. The roznama of the proceedings shows that on almost all the dates upto 17th May 2002, the complainant and/or his Advocate were present. On 17th May 2004 an application for substitution made by the applicant/complainant was allowed and the complaint was adjourned to 3rd July 2004. On 3rd July 2004, the complaint was adjourned to 2nd August 2004. The roznama dated 3rd July 2004 does not disclose whether the complainant/applicant was present. On 2nd August 2004, and on 8th October 2004 the applicant’s representative and his Advocate were absent. However, the accused and Advocate for the accused were present. On 2nd August 2004, a warrant earlier issued against the accused was cancelled by the learned Metropolitan Magistrate. The roznama dated 8th October 2004 shows that the case was adjourned to 10th December 2004 for dismissal. On 10th December 2004, the applicant/complainant and his Advocate were absent. The complaint was adjourned to 27th December 2004 on which date the impugned order has been passed. Perusal of the roznama shows that from 1997 till 17th May - 5 - 2004, the applicant was diligently prosecuting the complaint. In paragraph 10 of the application, it is stated that Mr.Subhash Rathod, Advocate was representing the Applicant. He was assisted by his junior colleague Mr.Rupesh. It is stated that Mr.Rathod was under treatment for chest pain and hypertension from October 2004 to December 2004. It is stated that from October 2004 to March 2005, Mr.Rathod’s father was not well and he was required to undergo heart surgery. Mr.Rathod was relying on his junior colleague who lost track of the complaint and could not inform the applicant about the dates fixed. In paragraph 11, the applicant has disclosed as to how it became aware about the dismissal of the complaint. 6. Perusal of the Roznama shows that till 17th May 2004, the complaint was diligently prosecuted by the Applicant. There is a reasonable explanation for the absence by the authorised representative of the applicant from 2nd August 2004 onwards. Therefore, the complaint deserves to be restored. 7. Hence, I pass the following order : i) Impugned order dated 27th December 2004 is quashed and set aside and the complaint bearing no.683/S/97 is restored to the file of learned Metropolitan Magistrate. ii) The learned Metropolitan Magistrate will issue a fresh - 6 - summons to the accused and will proceed with the case from which it was on 27th August 2004. iii) Application/Appeal is allowed in above terms. iv) Writ of this order to be forwarded expeditiously. v) A copy of this order shall be forwarded to the Chief Metropolitan Magistrate and all other Metropolitan Magistrates in the city of Mumbai. A copy of this order shall be forwarded to the Registrar (Judicial-I). JUDGE JUDGE JUDGE