- 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.627 OF 2003 APPLICATION NO.627 OF 2003 APPLICATION NO.627 OF 2003 AND AND AND CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.625 OF 2003 APPLICATION NO.625 OF 2003 APPLICATION NO.625 OF 2003 Pankaj Premji Dedhia ...Applicant (in both the applications) vs. 1.Jayant Paper Mills Ltd. 2.Shri H.R.Mehta 3.Shri Y.H.Mehta 4.Shri M.H.Mehta 5.The State of Maharashtra ...Respondents (in both the applications) Mr.Madhusudan Joshi for the applicant Mr.J.P.Yagnik A.P.P. for State Ms Nimish Desai for Respondent Nos.1 to 4. CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : FEBRUARY 20,2009 : FEBRUARY 20,2009 : FEBRUARY 20,2009 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. By order dated 11th February 2009, this court directed that these applications and appeals will be heard and disposed of finally. 2. Accordingly, I have taken up the matters for final hearing. The facts of both these applications are more or less identical. Therefore, I am referring to the facts of the case in Criminal Application no.627 of 2003 The applicant is the complainant who filed a complaint under section 138 of the Negotiable Instruments Act,1881. The complaint has been dismissed by order dated 28th November 2002 by the learned Magistrate in exercise of power under section 256 of the Code - 2 - of Criminal Procedure,1973. The order was passed by recording that though the complaint was fixed for recording of evidence, the applicant/complainant was absent and even his Advocate was absent. 3. The learned counsel for the applicant has invited my attention to the Roznama of the proceedings of the case as well as the averments made in paragraph 2 of the application. His submission is that on 16th November 2002, the applicant could not reach the court of the Magistrate before the matter was called out. The learned Magistrate recorded the plea of the accused. It is pointed out that when the applicant enquired with the Sheristedar, he was informed that the case was adjourned to 4th January 2003. He was not aware that the case was fixed for recording of evidence on 28th November 2002. He submitted that there is sufficient explanation for absence of the applicant on the day on which the complaint was dismissed. The learned counsel for the respondents no.1 to 4 (accused) submitted that there is no explanation for the absence of the applicant and the Advocate for the applicant. He submitted that the complaint was filed in the court of Metropolitan Magistrate at Mulund. He pointed out that both the applicant and his advocate are resident of Mulund and the accused attended the court at Mulund by all the way coming from Vile Parle. He submitted that a fresh plea of the accused was recorded on 16th November 2002. Though the case - 3 - was fixed for recording of evidence on 28th November 2002, the applicant had chosen to remain absent. He submitted that no case is made out for interference. He relied upon the decision of this court in case of M/s.Sonam Finance Lease Company Pvt.Ltd. Vs. Vasantsingh Shankar Narayansingh and another [2008 All M.R. (Cri) 2762]. The learned counsel for the applicant has placed reliance on the decision of the Apex Court in case of Mohamed Azeem Vs. A. Venkatesh and another (2002 (7) S.C.C. 726) 4. I have carefully considered the submissions. I have perused the Roznama of the proceedings. The complaint was filed in March 1998. Perusal of the extract of Roznama produced before this court shows that there does not appear to be any default on the part of the applicant in attending to the proceedings. Roznama shows that from time to time the applicant along with his Advocate was present. On 22nd October 2002, it appears that some of the accused persons were not present and therefore warrant was issued and the next date fixed was 27th October 2002. On 27th October 2003 warrant was cancelled. On both these dates, the complainant was present. On 27th October 2002, the case was adjourned to 16th November 2002. On 16th November 2002, the complainant/applicant and his advocate were absent. A fresh plea was recorded on that day and the case was fixed for recording of evidence on 28th November 2002. - 4 - 5. In paragraph 2 of the application for leave, the applicant has stated thus : "2. The Applicant/Appellant further states that almost on all the dates the Applicant/Appellant was remaining present in Court. However, on 16-11-2002 he reached the Court late by a few minutes and the mattes was however called out by then plea of the accused was recorded and was adjourned to 28-11-2002. On enquiry with the Sheristedar the complainant was however informed that the matter was adjourned to 4-1-2003. The complainant informed his Advocate accordingly. The complainant and his Advocate were therefore not present in Court on 28-11-2002 as they were under impression that the complaint was adjourned to 4-1-2003. The complaint was called out and was dismissed to default and accused were acquitted on 28-11-2002. The complainant’s brother Shri Tilak Dedhia who happened to be in Court on that day for his case being C.C.No.160/S/1997, appeared when the above case was called out and prayed for an adjournment as the complainant was not present at that time under the impression that the case stood adjourned to 4-1-2003. The Ld. Magistrate however passed an order dismissed the complaint and acquitted the Accused. The complaint was thus dismissed for default as under the bonafide mistake - 5 - the complainant could not remained present when the matter was called out. The Appellant states that on the very next day i.e. on 29-11-2002 he made an application before the said Magistrate for restoration of the said complaint and setting aside the order of dismissal dated 28-11-2002 but the same was rejected on the ground that there is no provision for restoration of complaint in the Code of Criminal Procedure." 6. Perusal of the Roznama shows that from the year 1998 onward, the applicant was diligently prosecuting the complaint. The applicant was admittedly absent on 16th November 2002. The reason for absence on 28th November 2002 has been mentioned in paragraph 2 of the application which is quoted above. This is not a case where the applicant was negligent. The case remained pending from the year 1998 to 2002. When the applicant remained absent on two dates in the year 2002, the learned Judge has taken a very harsh view of the matter. Apart from this there is sufficient explanation for his absence which is set out in paragraph 2 of the application. The decision of this court in case of Sonam Company Pvt.Ltd. will have no application as in the said case there was no explanation for the absence of the applicant/complainant. In my view, an opportunity deserves to be granted to the applicant to prosecute the complaint. The learned counsel for the respondent nos.1 to 4 stated that if - 6 - the complaint of the year 1998 is to be restored, the said respondents will suffer serious prejudice as they will have to attend the court at Mulund by coming all the way from Vile Parle. The prejudice which may be caused to the respondent nos.2 to 4 can be taken care of by directing the learned Magistrate to consider the application for exemption favourably if made by the said respondents. 7. Hence, I pass the following order : i) The impugned orders dated 28th November 2002 are quashed and set aside. The complaints filed by the applicant are restored to the file of the trial court. ii) The trial court will proceed with the complaints from the stage at which they were pending on 28th November 2002. iii) Considering the peculiar facts of the case, if an application for exemption is made by the respondent nos. 2 to 4 (accused 2 to 4), the said application shall be favourably considered by the learned Magistrate. iv) Hearing of the complaints is expedited. v) Parties are directed to appear before the learned Magistrate on 16th March 2009 at 11.00 a.m. - 7 - vi) Writ to be sent immediately. JUDGE JUDGE JUDGE