1 APPLN.5958-2004 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 5958 OF 2004 T.C.I. Finance Limited ...Applicant. Vs. Delvin Electric Pvt. Ltd. ....Respondent. ---- Mr. Ramesh Tiwari i/b Mr. Alok Bagla,for the applicant. Mrs. A.A. Mane, APP for the State. ---- CORAM: U. D. SALVI, J. APRIL 07, 2011. P.C.:- Heard. Perused the copies of the records annexed to the leave application. 2 Leave granted. 3 Admit. 4 It is pointed out that the appeal was to be disposed of along with leave application and the notice was to indicate the said fact as per order 4.12.2006. Service of the notice on the contesting respondents has been effected by mode of substituted service. 2 APPLN.5958-2004 Accordingly, the notice was advertised and published in the newspapers viz. ‘Free Press Journal’ and ‘Navashkti’ on 19.2.2011. Copies of the said publication are before the court, which indicate that the notice that applications and appeal will be finally disposed off at the stage of admission has been duly published. 5 However, none appears in response to this advertisement to contest the present appeal. 6 The roznama entry dated 27.7.2004 maintained by the learned trial court reveals that the evidence of the complainant was recorded in presence of Advocates of both the parties and the matter was posted for cross-examination on 22.9.2004 by consent. According to the appellant on 22.9.2004, his advocate was required to leave Mumbai for Ahamedabad for urgent work and as such he could not remain present before the trial court; and the authorised representative of the complainant could not remain present on the given date on account of loss of his diary and the case came to be 3 APPLN.5958-2004 postponed and posted for dismissal on 28.9.2004. Record reveals that on 28.9.2004, the complainant and his Advocate were absent, and the learned trial court proceeded to pass the following order: “ Today case was called at 1.45 p.m., 2.50 p.m., 3.30 p.m. and also at 4.35 p.m. Complainant and his advocate are absent. Case is partly heard. Last occasion complainant was absent and case was adjourned with remarks that, if complainant fails to appear on next date the case will be dismissed. It appears that the complainant is not interested in the matter hence complaint is dismissed for default. Both accused are required for offence u/s 138 N.I. Act.” 7 The observation made by the trial court that the complainant is not interested in the matter, is little harsh, particularly in context with the nothings recording the presence of the complainant before the court on several earlier occasions. The appeal is, therefore, allowed, and the impugned order dismissing the complaint is set aside. 4 APPLN.5958-2004 8 Parties to appear before the learned Chief Metropolitan Magistrate on 20th April, 2011 for further directions in the matter. The learned Chief Metropolitan Magistrate to assign the case before the appropriate court for its disposal according to law. (U. D. SALVI,J.)