rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 310 OF 1996 CRIMINAL APPEAL NO. 310 OF 1996 CRIMINAL APPEAL NO. 310 OF 1996 Smt.Mohini S.Shahapurkar ] Aged about 47 years, ] Occupation Household work ] Residing at 2450-B Ward ] Mangalwar Peth, Kolhapur 416 012] .. Appellant Vs. 1. Sanjay D.Managave ] Aged about 26 years, ] Occupation Building Contractor, ] Residing at Dhrupad Cooperative ] Housing Society, Near Ganesh ] Talkies, Gadhinglaj ] Kolhapur. ] ] 2. The State of Maharashtra ] .. Respondents Mr.P.D.Dalvi for the Appellant. Mr.J.P.Yagnik, A.P.P. CORAM : A.S.Oka, J. CORAM : A.S.Oka, J. CORAM : A.S.Oka, J. DATED : 5TH JANUARY, 2009 DATED : 5TH JANUARY, 2009 DATED : 5TH JANUARY, 2009 JUDGMENT :- JUDGMENT :- JUDGMENT :- . Heard the learned counsel appearing for the Appellant. 2. This is an Appeal against acquittal for challenging the order dated 3rd January, 1995 by which ( 2 ) the learned Judicial Magistrate First Class dismissed a complaint filed by the Appellant under section 138 of the Negotiable Instruments Act, 1881 (Herein after referred as the said Act 1881). The learned Magistrate exercised the power under section 256 of the Code of Criminal Procedure, 1973 (Hereinafter referred as "the said Code") and acquitted the first Respondent/accused. 3. The learned counsel appearing for the Appellant has taken me through the Roznama of the case. He pointed out that till 19th September, 1994 the complainant was regularly present in the Court. On 23rd December, 1994 when the case was fixed for recording plea, the Appellant was absent and his Advocate applied for adjournment. He pointed out that on 3rd January, 1995 when the impugned order was passed, the Roznama records that both the Appellant and first Respondents were absent. The learned counsel for the Appellant invited my attention to the impugned order dated 3rd January, 1999 which records that the first Respondent and his Advocate were present. He has placed reliance on a decision of the ( 3 ) Apex Court in the case of Mohd. Azeem V/s. Mohd. Azeem V/s. Mohd. Azeem V/s. A.Venkatesh and Anr. [2003 All M.R.(Criminal) 400 A.Venkatesh and Anr. [2003 All M.R.(Criminal) 400 A.Venkatesh and Anr. [2003 All M.R.(Criminal) 400 (SC)] (SC)] (SC)] and submitted that the learned Judge has taken very harsh view by exercising the power under section 256 of the said Code, 1973. None appears for the first Respondent. The learned A.P.P. is present for the second Respondent. 4. I have carefully considered the submissions. Perusal of the Roznama shows that process was issued on 13th April, 1994. Thereafter the case was fixed from time to time. Till 19th September, 1994, I find that the Complainant/Appellant was always present in the Court except on 9th June, 1994. From 9th June, 1994 onwards the complaint was repeatedly adjourned for recording the plea of the first Respondent. In fact, on 24th June, 1994 the Advocate for first Respondent sought adjournment. On 18th July, 1994, 17th August, 1994 and 19th September, 1994, the plea could not be recorded though both the Appellant and first Respondent were present. It is only on 23rd December, 1994 that the Appellant was absent. However, the Advocate for Appellant applied for an ( 4 ) adjournment. The Roznama dated 3rd January, 1995 records that the Appellant and the first Respondent accused were absent. However, the impugned order records that on 3rd January, 1995 the accused was present. The impugned order also records that Advocate for the Appellant was present, but, he did not file his Vakilpartra and also failed to apply for an adjournment. 5. Considering the fact that the Appellant was regularly attending the Court till 19th September, 1994, one opportunity deserves to be granted to the Appellant to prosecute the complaint. Considering the facts and circumstances of the case, the impugned order deserves to be quashed and set aside. The complaint will have to be restored. 6. Hence, I pass the following order : :: O R D E R :: :: O R D E R :: :: O R D E R :: i. The impugned Judgment and order dated ( 5 ) 3rd January, 1995 is quashed and set aside. ii. The Summary Criminal Complaint No.5307 of 1994 is restored to the file of the learned Magistrate. iii. The learned Magistrate is directed to dispose of the complaint as expeditiously as possible. iv. If record and proceeding is received by this Court, the same shall be forthwith transmitted to the concerned Trial Court. (A.S.Oka, J.) (A.S.Oka, J.) (A.S.Oka, J.)