((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1259 OF 2008 Maruti Pandurang Patil Applicant versus Mrs.Shalini Baburao Mhaisalkar Respondent Ashutosh Gole for applicant. J.P.Yagnik, APP for respondent. CORAM : A.S.OKA, J. DATE : 19th January 2009 JUDGEMENT : 1. Heard advocate for the applicant. By order dated 12th September 2008 this Court while issuing notice directed that if the leave is granted, the appeal will be finally disposed of at the stage of admission. The office endorsement shows that the notice has been duly served. The learned counsel for the applicant has tendered on record a certified copy of the Roznama of the case. A case is made out for grant of special leave to prefer an appeal. Leave is granted. Appeal is admitted. In terms of the order dated 12th September 2008, the appeal is taken up for final disposal. ((-2-)) 2. The applicant is the complainant in a complaint under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the said Act of 1881"). By the impugned order dated 30th October 2007, the learned Judicial Magistrate, First Class has acquitted the first respondent of the offence punishable under section 138 of the said Act of 1881. The learned Judge observed that the applicant- complainant filed an affidavit in lieu of examination in chief but he did not remain present on the date fixed for cross examination. The learned Judge noted that on certain dates, both the applicant and the first respondent remained absent and, therefore, the applicant could not be cross examined. He observed that as the applicant has not offered himself for cross examination, the affidavit in lieu of examination in chief tendered by him cannot be treated as evidence and in absence of any evidence, the first respondent was required to be acquitted. 3. A perusal of certified copy of the Roznama shows that on 5th April 2006 the applicant filed the affidavit in lieu of evidence at Exhibit-22. Thereafter, till 9th May 2007, the ((-3-)) complaint was adjourned from time to time. After filing of the affidavit in lieu of examination in chief, the case was adjourned to 3rd May 2006 for cross examination of the applicant. A perusal of the Roznama shows that up to 10th April 2007 the case was adjourned due to various reasons. On none of these dates from 3rd May 2006 up to 10th April 2007, the hearing was adjourned on ground of any default or absence on the part of the applicant. The entries reflected in the Roznama show that on account of absence of first respondent warrant was required to be issued. On some occasions, the case was adjourned as learned Trial Judge was not available. 4. On 9th May 2007, both the applicant and the first respondent were absent and the learned Judge was on vacation. The case was adjourned to 22nd July 2007. On that day the Trial Court passed "no cross order". However, in the Roznama it is not recorded whether the applicant and first respondents were present. The next date fixed was 8th August 2007 when both the parties were absent but an application was made at Exhibit-27 presumably by the first respondent. The case was adjourned to 3rd ((-4-)) October 2007. The Roznama of the said date does not record whether the complainant was present or absent. The case was adjourned to 29th October 2007 for recording statement under section 313 of the Code of Criminal Procedure, 1973. On 29th October 2008, the case was adjourned as the accused was not present. On the next date i.e. on 30th October 2008, the impugned order has been passed. Thus, perusal of the Roznama shows that after filing of the affidavit in lieu of examination in chief, there was no default on the part of the applicant. However, it appears that on 9th May 2007 and 27th July 2007 the applicant remained absent. Perusal of the Roznama shows that the applicant was seriously prosecuting the complaint and for a considerable long time there was no default on the part of the applicant. The applicant was present on various dates when his cross examination could have been recorded. On the other hand, on many dates fixed either the learned Judge was not available or the accused was absent. Considering all these aspects, one more opportunity deserves to be granted to the applicant to prosecute the complaint. ((-5-)) 5. Hence, I pass following order :- (a) The appeal is partly allowed; (b) The impugned order dated 30th October 2007 is quashed and set aside and the complaint being SCC No.2013 of 2003 is restored to the file of learned Judicial Magistrate, First Class, Jaisingpur; (c) The learned Magistrate will issue fresh summons to the first respondent and will proceed with the trial from the stage of cross examination of the applicant; (d) There will be no orders as to costs. (A.S.OKA, J.)