1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPLICATION NO.4688 OF 2009 IN CRIMINAL APPEAL NO. OF The Sarvodaya Co.Op.Bank Ltd. ...Applicant Vs. Balawantrao S. Yadav, Sole Prop. of Sagar Enterprises & Anr. ...Respondents Mr.Arjun Kode, Advocate for the Applicant Mr. D.R.More, A.P.P for the State CORAM: SMT.ROSHAN DALVI, J. DATED: 16TH NOVEMBER, 2009 P.C. 1.The applicant is the original complainant. The complaint came to be filed in January 2004. Process was issued on 28 th January 2004. The complaint came to be adjourned from time to time on at least 14 occasions. The complainant remained present on several occasions and absent on several occasions. Initially the complainant was invariably present. Towards the later part from September 2007 the complainant remained absent on 4 occasions. The learned Magistrate dismissed the complaint and acquitted the accused on 5 th January 2009 for default of the appearance of the complainant. 2 2.The notice came to be issued upon respondent No.2 to enable him to state his case in the Court. The notice sent by RPAD has been returned with the remark unclaimed . The appeal papers served through Hamdast has been refused by his son. The service is, therefore, complete. 3.It is seen that the criminal complaint was being prosecuted from early 2004 to the end of 2008. For the 4 years that it had remained in the Metropolitan Magistrate s Court, any complainant would naturally remain absent on some occasions. Parties attend before the Magistrate s Court for their proceedings, to be heard. Unfortunately, the proceedings were adjourned on numerous occasions, because the learned Magistrate is over burdened with work. Neither of them is to be blamed. The only aspect to consider is that the complainant who himself/herself or itself initiated the criminal process would clearly seek to prosecute it. The complainant has no reason to delay or to evade the criminal process started by himself/herself or itself. Since judicial notice is required to be taken of the fact that there are a large number of complaints each day in the learned Magistrate s Court, the learned Magistrate would be able to take up only some of the complaints when the complainant is present on the given 3 date. Consequently, dismissing the complaint for default would not serve ends of justice or amount to satisfactory disposal of the matters before any Court. 4.In this case there is nothing to show that the complaint was frivolous or that the complainant constantly remained absent instead of appearing to prosecute it or otherwise evaded the Court process. The complainant was indeed present on a number of occasions initially. The accused also remained absent on a number of occasions, though the accused also did remain present on several occasions. It appears that the learned Magistrate has called out the board by way of roll-call. So soon as the parties were absent for the first time, the learned Magistrate has adjourned the complaint for dismissal. Thereafter, since the complainant remained present, the learned Magistrate has adjourned the complaint. When the accused remained absent he has issued notice and later N.B.W. 5.The N.B.W came to be issued on 20 th May 2008 despite that, on the next occasion the accused was absent. Even on the date of the dismissal of the complaint the accused was absent. He was not produced under the N.B.W issued. 6.Merely because the complainant remained absent on the 4 last date of hearing, the complaint has been dismissed, though the accused had remained absent on 3 earlier dates and N.B.W against him was also issued. The roznama therefore, shows that the dismissal of the complaint for default is not a just and equitable order. It may be a technically correct order. However, interest of justice requires that the complaint be heard on merits. 7.Leave to appeal is granted. However, since the respondent No.2 has not appeared despite service upon him and in order to give the respondent No.2 an opportunity to state in support of the order of dismissal, if required, the applicant shall serve another notice by registered post upon respondent No.2 informing respondent No.2 that the Appeal shall be heard on the next date. 8.The notice is made returnable on 14 th December 2009. 9.The Appeal shall be placed on board at 3 p.m for hearing. (SMT. ROSHAN DALVI, J.)