1 Farad Continuation Sheet No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR. CRIMINAL APPLICATION NO.709 OF 2008 IN CRIMINAL APPEAL NO.292 OF 2008 (M/S.BHAGWATI TIMBER MART Vs. AMIYA KUMAR MISHRA.) ________________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. ______________________________________________________________________________ Shri B.D.Dave, Advocate for applicant. CORAM : R.C.CHAVAN, J. DATED : NOVEMBER 25, 2008. 1. Cri. Application No.709/2008 came up for hearing on 20th June, 2008 when this Court had indicated that notice of final disposal calling show cause as to why by granting leave and hearing the appeal forthwith, S.C.C. No.2903 of 2007 should not be remanded for fresh hearing and disposal according to law. 2. Accordingly, notice was issued to the respondent which has been duly served but the respondent remained absent. 3. By this appeal the applicant seeks to 2 challenge the order passed by learned Judicial Magistrate First Class, Nagpur acquitting the respondent of the offence punishable under Section 138 of the Negotiable Instruments Act because the complainant had not prosecuted the lis. The learned counsel for the applicant states that the applicant failed to appear in the Court when the matter was called since he was busy before another Court at that time and that the lapse is unintentional. 4. Since the complaint was disposed of without any evidence being recorded it would be appropriate that the complainant is granted chance to tender evidence before the trial Court. This should not be construed as condoning lapse on the part of the complainant in not appearing before the trial Court. 5. All the same, since the respondent, though duly served, did not care to appear and contest the appeal, leave granted. 6. The application is disposed of accordingly. CRI.APPEAL NO. 292/2008. 7. Appeal taken up for hearing finally. 3 8. Record is not required to be called in view of the fact that no evidence has been tendered in that case before the trial Court and the acquittal is recorded because of failure of the complainant to tender evidence. Hence, the appeal is allowed. 9. The impugned order is quashed and set aside and the matter is remanded back to the trial Court for hearing on merits. 10. The learned trial Magistrate shall cause summons to be served upon the respondent-accused so that trial can proceed. JUDGE RR.