IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2379 OF 2007 The Securities and Exchange Board Of India .. Applicant Versus Subh-Shanti Investment & Ors. .. Respondents] Mr.V.N.Shingnapurkar i/by H.N.Associates for the applicant. Ms.A.T.Jhaveri, A.P.P for the State. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 3rd April 2009. : 3rd April 2009. : 3rd April 2009. P.C.: . The learned counsel appearing for the applicant states that notice has been duly served in terms of order dated 12th March 2009. In terms of order dated 13th January 2009 read with order dated 12th March 2009, the application is taken up for final hearing. 2. The applicant is the Securities and Exchange Board of India Ltd. A private complaint was filed by the applicant complainant alleging the violation of provisions of the Securities and Exchange Board of India Act, 1992 against the 1st respondent. The summons was served and the accused furnished P.R bond. It appears (2) that the learned Magistrate issued a non bailable warrant against the accused. The non bailable warrant was made returnable on 17th Mary 2007. Following is the impugned order passed by the learned trial Judge: "Complainant absent. Adv.Deepak Rane for Shingnapurkar present. Warrant was issued on 05.05.2007. It was collected by complainant on 16.05.2007. Inspite of receiving warrants, it was not handed over to police for execution and it is retained by the complainant or advocate unauthorisedly. Even today the complainant and advocate are not returning that warrant or seeking any extension of date. It shows that complaint is not interested in the trial of the case by securing presence of accused. The trial is summary case. I therefore dismissed the complaint under section 256 of the Code of Criminal Procedure." 3. The learned counsel appearing for the applicant has invited my attention to the averments made in paragraph 4 of the application as well as ground (II) in (3) paragraph No.5 of the application. He has produced for my perusal the original non bailable warrant issued by the trial Court. The endorsement made below the signature of the learned Metropolitan Magistrate on the said warrant shows that the same was ready on 14th May 2007. There is a statement on oath in this application that the non bailable warrant was received by the applicant at 4.00 p.m on 16th May 2007. The returnable date was 17th May 2007. Therefore, it was practically impossible for the applicant to ensure that the non bailable warrant was served to the accused before the returnable date. 4. All these aspects have been completely glossed over by the learned Magistrate and he has found fault with the alleged failure of the applicant to serve the non bailable warrant. The impugned order shows that advocate for the applicant was present. 5. The roznama of the case shows that the applicant was diligently prosecuting the complaint. The occasion for issuing non bailable warrant arose as the accused did not remain present though summons was served earlier and he had furnished P.R bond. Therefore, the observation made by the learned trial Judge that the (4) applicant was not interested in the trial of the case was uncalled for. 6. Thus, going by the record, this was not a case where discretionary power under section 256 of the Code of Criminal Procedure, 1973 could have been exercised by the learned Magistrate. 7. Hence, I pass the following order: (i) The impugned order dated 17th May 2006 is quashed and set aside. (ii) The complaint bearing C.C.No.2178/W/2003 is restored to the file of the learned Magistrate. (iii) The learned Magistrate will proceed with the complaint in accordance with the law. (A.S.Oka,J)