-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.537 OF 2007 APPLICATION NO.537 OF 2007 APPLICATION NO.537 OF 2007 IN IN IN CRIMINAL CRIMINAL CRIMINAL APPEAL NO. OF 2007 APPEAL NO. OF 2007 APPEAL NO. OF 2007 Vilas Bhimrao Gavhane ...Applicant vs. Maruti Narayan Doltode & Anr. ...Respondents Mr.U.B.Nighot for the Applicant Mr.Vivek Salunkhe for the Respondent No.1. Mr.U.S.Shinde,A.P.P. for State CORAM: CORAM: CORAM: SMT.V.K.TAHILRAMANI,J. SMT.V.K.TAHILRAMANI,J. SMT.V.K.TAHILRAMANI,J. DATE DATE DATE : JUNE 24,2008. : JUNE 24,2008. : JUNE 24,2008. P.C.: P.C.: P.C.: 1. Heard learned Advocate for the Applicant and the learned Advocate for Respondent No.1 and learned APP for the State. Leave granted. By consent Appeal is heard finally. Office to register the Appeal. 2. The Respondent No.1 (original complainant had filed a complaint against the present applicant under section 138 of the Negotiable Instruments Act. The said complaint was filed in the Court of J.M.F.C., Court No.7, Pune and the said complaint was numbered as STC 40702/05. 3. On 19-1-2006 as the complainant remained absent, due to absence of the complainant, the learned J.M.F.C. dismissed the complaint under section 256 of Cr.P.C. and acquitted the accused-Respondent. Being aggrieved by the dismissal of the -2- complaint, the complainant preferred Application before the learned Magistrate for restoration. The learned Magistrate rejected the said application holding that he did not have powers. 4. In the present case, the Magistrate had issued process against the accused under section 138 of the Negotiable Instruments Act. The Respondent-accused did not appear in response to the summons. The matter was kept on 8-9-2005. On 8-9-2005Respondent No.1 was absent and hence warrant was issued against him and matter was adjourned to 6-10-2005. However, Respondent no.1 without notice to the Applicant got the said warrant cancelled on 9-9-2005. 5. The Roznama dated 9-9-2005 shows that the complainant was absent. Obviously, the complainant could not remain present on 9-9-2005 as he had no notice, hence, no fault can be attributed to the complainant for not remaining present on that day. 6. The learned Advocate for the Applicant has submitted that thereafter the father of the applicant was not well and in fact on two occasions his father was admitted in hospital from 16-11-2005 to 22-11-2005, and from 7-12-2005 to 9-12-2005. The said hospital is Pooja Hospital. -3- 7. It is seen that during the period from 6-10-2005 to 19-1-2006, the complainant was absent. The main reason for absence during that period was that the complainant’s father was unwell so much so that he was required to be admitted in the hospital on two occasions during the said period. 8. In order to appreciate the controversy involved in this matter, it is necessary to reproduce the provisions of section 256 of Cr.P.C. which is as under : 256. Non-appearance or death of complainant. - (1) If the summons has been issued on complaint and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing maybe adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other day. . Provided that where the complainant is represented by a pleader or by the office conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. -4- (2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non appearance of the complainant is due to his death. 9. A brief perusal of the above section, would indicate that the section is mandatory in nature and if the complainant does not appear on the date of hearing, the Magistrate shall acquit the accused. However, the latter part of the section clearly indicates that the Magistrate has another option i.e. to adjourn the hearing of the case to some other date. The third option which is available to the Magistrate under this section is that, the Magistrate may proceed with the case if in the opinion of the Magistrate, the personal appearance of the complainant is not necessary. 10. The reasons for absence of the complainant can be numerous. Sometimes the reasons may be beyond the control of the complainant. 11. Looking to the facts of this case, I am of the opinion that in the interest of justice it is necessary to restore the complaint. Hence, the complaint is restored. 12. The learned Magistrate is directed to proceed with the trial of the case after issuance of formal notices to both the parties of the next date to be fixed in the case. -5- 13. Application is disposed of in the above terms. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)