1 APPLN.5956-2004 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION MISC.NO. 5956 OF 2004 T.C.I. Finance Ltd. ...Applicant. Vs. Dharendra Industries Ltd. & Ors.. ...Respondent. ---- Mr. Rahul Tiwari i/b Alok Bagla, for the applicant. Mrs. M.M. Deshmukh, APP for the State. ---- CORAM: U. D. SALVI, J. APRIL 13, 2011. P.C.:- Heard. Perused the application and the affidavit of service dated 12.1.2007 serving the notice privately through advocate’s letter dated 7.12.2006. 2 Order dated 4.12.2006 directed disposal of the leave application and the appeal together. Leave granted. 3 Heard. Perused the appeal and annexures thereto, particularly copies of Roznamas- Copies of Roznamas in CC No.1145/S/2003 disposed off by the learned Additional Chief Metropolitan Magistrate, 47th Court, Mumbai. 2 APPLN.5956-2004 4 Copies of the Roznamas reveal the appellant’s contention. The complainant had lead its evidence on 15.7.2004 and the case was posted for his cross examination on 22.9.2004. On 22.9.2004 neither the complainant nor his Advocate remained present before the court and the case came to be posted on 28.9.2004. In meanwhile, bailable warrant for the appearance of respondent no.2 the accused no.2 in the said case was issued. Ultimately on 28.9.2004, the learned Metropolitan Magistrate, 47th Court, Mumbai dismissed the complaint for default on the ground that the complainant was not interested in the matter. Order dated 28.9.2004 reveals that the warning was given to the complainant and his Advocate on 22.9.2004 about the impending dismissal. According to the applicant-complainant he had lost his case diary resulting in communication gap between it and its Advocate which consequently resulted in absence of both of them before the trial court. 5 The applicant needs to be given a fair opportunity to pursue the legal remedy before the trial court. Appeal is allowed. The order of dismissal dated 28.9.2004 passed by the Additional Chief Metropolitan Magistrate, 47th Court, Mumbai passed in CC No.1145/S/03 is set aside. CC No.1145/S/03 to proceed in accordance with law. The applicant- complainant to appear before the Additional Chief Metropolitan 3 APPLN.5956-2004 Magistrate, 47th Court, Mumbai on 20.04.2011 for further directions. 6 Criminal Application as well as Appeal stand disposed off. (U. D. SALVI,J.)