1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Criminal Application No.2618 of 2009 _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ 1. This is an application seeking leave to appeal. 2. The application and appeal are being disposed of together inasmuch as the complaint filed by the applicant vide SCC No.9685/2008, for offence U/s 138 of the Negotiable Instruments Act, came to be dismissed for want of prosecution. Considering the fact that the dismissal is not on merits but is only on technical ground, leave to appeal is granted. 3. The appeal is admitted and immediately heard finally. 4. The impugned order shows that the application was submitted by present applicant (complainant) for issuance of non-bailable warrant against the Respondent. His advocate remained absent. The Respondent was found present on the given date i.e. 10.6.2009. The applicant did not file any affidavit in support of the complaint case. Therefore, the learned Magistrate inferred that the applicant had no interest to proceed with the case and as such dismissed the complaint in default. 5. Having heard learned counsel for the parties and on going through the copy of the Roznama, it transpires that the private complaint case was transferred from 4th Court of Judicial Magistrate (F.C.), to 10th Court of learned Judicial Magistrate. The misunderstanding could have occurred as a result of transfer of the Criminal case which was not properly notified or that was not noted by the complainant. Considering the fact that intentional absence of the complainant can not be gathered, it goes without say that his lack of interest could not have been inferred. In this view of the matter, dismissal of the complaint U/s 256 of the Cr.P.C. is unsustainable. Still, however, I deem it proper to hold that the Respondent No.2 would be entitled to costs, inasmuch as for no substantial reason, he was required to face the litigation in this Court. 6. In the result, the appeal is allowed and the impugned order of dismissal is set aside subject to costs of Rs.2,000/- (Rupees two thousand) which shall be the condition precedent and shall be paid within a period of two (2) weeks. (V.R.KINGAONKAR,J.) Dt.14.10.2009. asp/office/Crapp2618.09