1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPEAL NO.486 OF 2009 Ashok Inder Bondre ...Applicant Vs. Sambhaji Shamrao Patil & Anr. ...Respondents Mr.Umesh Mankapure, Advocate for the Appellant Mr. M.S.Lagu, Advocate for Respondent No.1 Mrs. R.V. Newton, A.P.P for the State CORAM: SMT.ROSHAN DALVI, J. DATED: 9TH DECEMBER, 2009 P.C. 1.This is an appeal from acquittal. The accused in a criminal complaint under Section 138 of the Negotiable Instruments Act has been acquitted upon the fact that the complainant remained absent on a number of occasions. The complaint was filed in the year 2000. The complaint has been dismissed in the year 2008. It is impossible for the litigant to remain present on every single date of hearing, if the criminal complaints cannot be taken up due to constraint for a period of 8 years, though it is the duty of the complainant to remain present when the case is taken 2 up. It is common knowledge that since the Courts are over loaded with work most of the cases cannot be taken up and are adjourned. However, the case which is 8 years old is expected to be taken up and the complainant should have remained present. Though the decision of the learned Magistrate cannot be faulted by dismissing the complaint when the complainant has not remained present, interest of justice demands that the complainant be heard on merits since he is shown to have remained present on a number of dates whilst the complaint remained pending in the Court since the year 2000. 2.In the interest of justice, therefore, the Appeal is disposed off upon the following directions: 1.Order dated 7 th February 2008 of the 4 th Joint Judicial Magistrate, First Class, Sangli is set aside. 2.The Complaint No.796/2000 is restored to his file. The complaint is of the year 2000 and therefore, is likely to reach hearing within a short time. 3.The affidavit of examination-in-chief of the complainant is filed. The applicant shall remain present in Court on the forthcoming dates of 3 hearing without fail to face the cross examination. 4.The complainant shall keep other witnesses present in the Court, if he desires to examine any other witness. 5.The learned Magistrate shall dispose off the complaint in accordance with law. 6.At present since the Advocates of both the parties are present they are directed to appear before the learned Magistrate on 6 th January 2010, thereafter the learned Magistrate may give dates at his convenience taking into account that this as an old criminal complaint of the year 2000. (SMT. ROSHAN DALVI, J.)