1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO.556 OF 2009 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Shri A.V.Rakh, Advocate, holding for Shri G.V.Wani,for appellant. Shri B.R.Nagargoje, Advocate holding for Shri R.J.Godbole for Resp.No.1. --------- 1. Today, by separate order on criminal application No.2923 of 2009, leave to file appeal has been granted. 2. Learned Advocate for Respondent No. 1 and learned APP Shri B.V.Wagh waive notice for Respondent No. 1 and 2 respectively. By consent of Advocates for parties, appeal is taken up for final hearing. 2 3. This appeal is against the order of acquittal passed on 4.4.2009 by learned Judicial Magistrate, First Class, Dhule in STCC No. 2877 of 2008 under Section 256 of the Code of Criminal Procedure, 1973. Admittedly, present appellant has filed private complaint for offence punishable under Section 138 of the Negotiable Instruments Act. Present Respondent No.1 was accused. It is alleged that Respondent No. 1 has opened credit account with appellant, who was trader in cattle feed. Towards purchases made on credit, on 2.6.2007, Respondent No. 1 had issued cheque for Rs. 1.20,000/= on D.D.C.C. Bank Ltd. Dhule in favour of the appellant. However, the said cheque when when presented for encashment was dishonoured. Subsequently, notice was issued to Respondent but no reply was given and hence complaint 3 was lodged. 4. The matter came up for hearing before the learned Magistrate on 4.9.2008. As per documents on record, on 2.1.2009 the accused gave an application stating that there were talks for settlement between the parties and, therefore, the matter be adjourned for one month. Thereafter on 21.2.2009, Advocate for accused gave another application for adjournment on the ground that the talks for settlement are in progress and due to some reasons even Respondent No. 1 was not present and the matter be adjourned. Thereafter on 7.3.2009, Advocate for the appellant-complainant made an application seeking adjournment on the ground that brother of the complainant suffered attack and was hospitalized and, therefore, complainant could not remain present on that day. 4 5. All these applications were granted. Thereafter on 4.4.2009, complainant was absent and it is also noted by the learned Magistrate in his order dated 4.4.2009 that on 25.7.2008 the matter was adjourned for filing affidavit in lieu of examination-in-chief and hence the accused was acquitted by order dated 4.4.2009 under Section 256 of the Code of Criminal Procedure. 5. In paragraph 4 of the appeal memo, it is stated that on 4.4.2009 Advocate Shri R.M. Agarwal appearing for the complainant was not present in the court due to his personal difficulties and the appellant also could not keep himself present since he was not keeping well. However, junior of Advocate Shri R.M.Agarwal appeared in the court at 1.30 p.m. and prayed for time. But, as stated above, order of acquittal of accused 5 came to be passed by learned Magistrate under Section 256 of Cr.P.C. 6. Considering the facts and circumstances and in the interest of justice this appeal against acquittal is allowed. The impugned order dated 4.4.2009 passed by learned Magistrate is set aside with directions that the said criminal case bearing No.STCC 2877 of 2007 be restored to file and it be decided afresh according to law. Advocates of the Appellant and Respondent No.1 agree to keep their clients present before the court of the learned Magistrate on 3.12.2009. Advocate of the appellant also assures that his client will not seek unnecessary adjournments. ٍDate:04/11/2009 (P.R.BORKAR, J.) pnd/criapl556.09