1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL (ST.) NO.220 OF 2009 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Coram: P.R. Borkar, J. Date : February 15, 2010 Shri S.B.Ghatole Patil, Advocate for the appellant. 1. Leave to file appeal is granted by order separately passed in criminal application No.220 of 2009. 2. Heard learned Counsel for the appellant. Notice to Respondents. Notice waived by learned Advocate Shri R.V.Gore for the Respondents. 3. With consent of the learned Advocates for the parties, appeal is taken up for final hearing. 2 4. In this case, present appellant has filed a private complaint bearing S.C.C. No.41 of 2007 in the court of Judicial Magistrate, First Class, Paithan, against the Respondents- accused for committing offence punishable under Sections 324, 323, 504 and 506 of I.P.C. Pursuant to the summonses issued, Respondents appeared and filed bail application on 26.11.2007. Thereafter, the matter was adjourned from time to time. 5. On 28.11.2008, the complainant and his advocate were absent. The Respondents-accused, therefore, prayed for dismissal of the complainant. The learned Magistrate dismissed the said complaint on 28.11.2008 under Section 256 of Cr.P.C., thereby acquitting the accused persons. However, the complainant appeared on the same day, belatedly gave an application through his Advocate for restoration of the complaint. The said application was dismissed and hence this appeal. 3 6. On perusal of roznama and record and proceedings, it is clear that the complainant was present on 28.12.2007, 2.2.2008, 3.3.2008. However, on 28.5.2008 and 13.8.2008, the complainant was absent. On 13.8.2008, the accused-respondents gave an application for dismissal of complaint, however, the matter was adjourned to 22.2.2008 on which date Advocate of the complainant was on leave and the matter stood adjourned to 28.11.2008. On 28.11.2008 the complainant and his Advocate were absent and so, order of dismissal of complaint was passed. On the very day, the complainant gave an application (Exh.22) for setting aside the order of dismissal of complaint, which was opposed by accused persons. The said application is also rejected. 7. It argued by learned Advocate for the appellant that on 28.11.2008, the Advocate of the complainant in the trial court had come in the court at 12.00 noon and given the application 4 (Exh.22) stating that the complainant hails from rural area and therefore he was late in attending the court. It was prayed that in the interest of justice, the order of dismissal may be set aside. It is also stated that within one hour after dismissal, the said application was given. 8. Shri R.V.Gore, learned Advocate for the Respondents vehemently opposed the appeal. 9. Considering the peculiar facts and circumstances, this appeal can be allowed, but on condition because for no fault of the respondents-accused, they had to engage Advocate in the High Court and incur expenses. 10. Appeal allowed. The order passed by the learned J.F.F.C. on 28.11.2008 is hereby set aside and the original criminal case is restored to file on condition that the appellant- complainant shall deposit an amount of Rs.3000/= as costs payable to the 5 Respondents in the trial court within four weeks from today. In case the amount is deposited, the criminal case shall be restored to the file by the trial court. In case of deposit of costs, the Respondents shall appear in the trial court on 26.3.2010 on which date the complainant shall also appear and the matter shall proceed further. However, if cost as directed above is not deposited, this appeal and the criminal case shall stand dismissed automatically. Date: 15/02/2010 (P.R.BORKAR, J.) pnd/criaplst220.09