{1} CWP No.1185/2010 drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.1185 OF 2010 Ashok Ramchandra Dube PETITIONER Age-55 years, Occ-Service R/o S.T. Quarters Osmanabad Tq and Dist-Osmanabad VERSUS 1. The State of Maharashtra RESPONDENTS 2. Vijaykumar Rajaram Jadhav Age-51 years, Occ-Service, R/o Sant Sainath Housing Society, Apsinga Road, Behind Tuljapur Naka Near Flour Mill, Osmanabad ....... Mr.P.M.Kulkarni, Advocate for the petitioner Mrs.Yogita M.Kshirsagar, APP for respondent State Ms.M.S.Shendge, Advocate for respondent No.2 ....... [CORAM : A.V.POTDAR, J.] DATE: 8 th September 2011 ORAL JUDGMENT: 1. Rule. Rule made returnable forthwith. By consent of the parties, this petition is heard finally at the stage of admission itself. {2} CWP No.1185/2010 2. By the present petition, the petitioner, original complainant in SCC No.1274/2009, is before this Court challenging the order of dismissal of SCC No.1274/2009 for default by CJM, Osmanabad and confirmed in Criminal Appeal No. 79/2010 by Additional Sessions Judge, Osmanabad. 3. Perusal of the record indicates that the petitioner has filed a private complaint u/s 138 of the Negotiable Instruments Act r/w section 420 of the Indian Penal Code against respondent No.2. The complaint indicates that when respondent No.2 was in need of money, the petitioner-complainant had given it to him by withdrawing his funds and it was agreed to be re-paid within 6 months. However, after the period of 6 months was over the amount was not paid by respondent No.2, but a cheque was handed over to petitioner-complainant. Unfortunately, when the cheque was presented in the bank, it could not be honoured and hence after following the requisite compliance, the complaint came to be filed by the petitioner. It appears that after verification, the trial court had issued process. It further appears that on the date {3} CWP No.1185/2010 of appearance, as the parties failed to appear, the trial court dismissed the complaint for default and acquitted respondent No.2 vide order dated 04.10.2010. This order was challenged by the petitioner by filing Criminal Appeal before Sessions Judge, Osmanabad. Sessions Judge, in view of the fact that due to amendment introduced u/s 372 (i) of the Criminal Procedure Code, that the appeal would not lie before the Sessions Court, dismissed the same on technical grounds. Therefore, the petitioner is before this Court. 4. Though averments are made in the petition that the date was fixed by the trial court on 8 th October 2010 and the complaint came to be dismissed on 4 th October, 2010, yet no document is produced on record to show that in fact the trial court had fixed the matter on 8th October 2010. Be that as it may, the fact remains that the impugned order does not indicate that the complaint is dismissed for default as the complainant failed to appear inspite of repeated chances given to him. In view of this position, that the complaint is dismissed for default of the complainant of not appearing before the Court on a single {4} CWP No.1185/2010 occasion, the impugned order is harsh. In the premise, the impugned order requires to be quashed and set aside. 5. Consequently, the writ petition is allowed. The complaint SCC No.1274/2009 is restored to the file of CJM, Osmanabad. Rule is made absolute as indicated above. Parties are directed to appear before the trial court on 22.09.2011. Learned counsel for parties undertake to communicate this order to their respective clients. Parties to act on the authenticated copy of this order. [A.V.POTDAR, J.] drp/B11/cwp1185-10