:1: 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 SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPEAL NO.918 OF 2008 CRIMINAL APPEAL NO.918 OF 2008 CRIMINAL APPEAL NO.918 OF 2008 Shivaji Khanderao Tambe ...Appellant. v. Balasaheb R. Nagwade & Ors. ...Respondents. Mr.A.P.Kulkarni , adv. for the Appellant. Mr.A.S.Shitole, APP for the Respondent/State. CORAM: CORAM: CORAM: R.V.More,J. R.V.More,J. R.V.More,J. DATE: 26th March, 2009. DATE: 26th March, 2009. DATE: 26th March, 2009. P.C. P.C. P.C. 1. Heard Mr.Kulkarni learned counsel for the appellant and Mr.Shitole the learned APP for the respondent no.2/State. None appears for the respondent no.1 though served. 2. The appeal arises out of an order passed by learned Additional Sessions Judge, Baramati, District Pune in Criminal Revision Application No.65 of 2006 whereby respondent no.1’s application was allowed and the order passed by the J.M.F.C., Baramati on 8.8.2006 restoring the appellant’s complaint at its original status came to be set aside. The appellant thereafter preferred this appeal alongwith criminal application no.2754 of 2007 for leave to appeal. By the order dated 5th August, 2008, leave to appeal was granted and notice was issued to the respondents and made returnable on :2: 15th September, 2008. By the order dated 27th January, 2009, the appellant was given liberty to serve respondent no.1 by private service. The appellant accordingly filed service affidavit pointing out that the respondent no.1 is served. 3. The appellant filed criminal case no.423 of 2006 against the respondent no.1 under provisions of Section 138 of the Negotiable Instruments Act on 19.4.2006. The trial started on 5th July, 2006. On that day the appellant and his counsel were present. However, the case was adjourned at the instance of the respondent no.1 to 8.8.2006 for recording evidence. On 8.8.2006, the appellant and his counsel could not remain present when the case was called out and the learned Magistrate dismissed the complaint under Section 256 of the Cr.P.C. and acquitted the respondent no.1. On the same day, the appellant filed an application at Exhibit 14 for restoration of the complaint. Learned Magistrate considering the reasons given in application for appellant’s absence on that day restored the complaint to file. This order was challenged by the respondent no.1 in Criminal Revision Application No.65 of 2006 and the learned Additional Sessions Judge, Baramati, District Pune by the order impugned in the present appeal, quashed and set aside the order of Magistrate restoring the appellant’s complaint. :3: 4. Mr.Kulkarni the learned counsel for the appellant submitted that adjournment was granted at the instance of the respondent no.1 to 8.8.2006. The appellant could not remain present on account of agricultural work. The reason was accepted by the Magistrate and rightly restored the complaint. He submitted that the learned Additional Sessions Judge however committed error in setting aside the order of Magistrate. He relied upon the Apex Court’s judgment in Mohd. Azeem v. A.Venkatesh & Anr. Mohd. Azeem v. A.Venkatesh & Anr. Mohd. Azeem v. A.Venkatesh & Anr. reported in 2003(1) 2003(1) 2003(1) Bom.C.R.524 Bom.C.R.524 Bom.C.R.524. Mr.Shitole learned APP left the matter at the discretion of Court. 5. Having gone through the order impugned in the present appeal, I am of the considered view that there is merit in the appeal. The learned Additional Sessions Judge allowed the respondent no.1’s revision only on the ground that there is no provision in Cr.P.C. for restoration of the complaint. He was of the view that the trial Court becomes functious officio once complaint is dismissed under Section 256 of Cr.P.C. This view of the learned Additional Sessions Judge can not be sustained in view of the Apex Court’s judgment in Mohd. Mohd. Mohd. Azeem Azeem Azeem (Supra). Facts of the present case and facts before the Apex Court are similar. The Apex Court in paragraph 4 observed that :4: 4..........."In our opinion, the learned Magistrate committed an error in acquitting the accused only for absence of the complainant on one day and refusing to restore the complaint when sufficient cause for the absence was shown by the complainant." In the present case also, the appellant and his counsel was absent when the matter was called out on 8.8.2006. However, on the very same date, application for restoration of complaint giving sufficient reasons was filed. The learned Magistrate satisfied about sufficiency of cause and restored the complaint subject to the penalty of Rs.300/-. 6. It is also worth to mention that observations made by the learned Magistrate while dismissing the complaint that the complainant/appellant was absent on many dates is factually incorrect. As already observed, the appellant and his counsel was absent only on 8.8.2006. Taking overall view of the matter, I am of the view that to subserve interest of justice, complaint deserves to be restored, as sufficient cause was shown. I, therefore, dispose off the appeal by passing the following order: i. The appeal is allowed. ii. Impugned order passed by learned Additional Sessions Judge, Baramati, Dist. Pune in Criminal :5: Revision Application No.65 of 2006 is quashed and set aside. iii. Criminal Complaint No.423 of 2006 is restored to the file by setting aside the order of Magistrate dismissing the same under Section 256 of the Cr.P.C. (R.V.MORE, J.) (R.V.MORE, J.) (R.V.MORE, J.)