1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.888 OF 2009 Anil Dalmiya Petitioner versus The State of Maharashtra and another Respondents Rishi Bhuta for petitioner. Pradeep Hingorani, APP for State. CORAM : A.S.OKA, J. DATE : 09th June 2009 PC : 1. Heard learned counsel appearing for the petitioner. The petitioner has been arraigned as an accused in a complaint filed by the second respondent alleging commission of offence under section 138 of the Negotiable Instruments Act, 1881. According to the case of the petitioner-accused, after filing an affidavit in lieu of examination-in- chief the second respondent consistently remained absent. Therefore, an application was made by the petitioner before the learned Magistrate praying that the order under section 256 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the said 2 Code”) be passed and the complaint be dismissed. On the said application, on 1st April 2009 the learned Magistrate issued notice to the second respondent-complainant on the ground that he was absent. 2. The grievance of the advocate for the petitioner is that the learned Magistrate could not have issued the notice on the said application and as the complainant was absent he should have exercised the discretionary powers under section 256 of the said Code and ought to have proceeded to dismiss the complaint. 3. I have considered the submissions of the learned counsel for the petitioner. The petitioner has invoked extraordinary jurisdiction of this Court under Article 227 of the Constitution as well as the jurisdiction under section 482 of the said Code. The application made by the petitioner under section 256 is still pending. The learned Magistrate will have to consider the case made out in the application and will have to decide whether the power under section 256 of the said Code deserves to be invoked. The application made by the petitioner is still pending. 4. It is well settled that the power under section 482 of the said Code has to be exercised sparingly and in rare cases. This is not a 3 case where interference can be made by this Court at this stage. Hence, the petition is rejected. However, the learned Magistrate is directed to pass appropriate order on the application made by the petitioner in accordance with law. (A.S.OKA, J.)