1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPLICATION NO.5774 OF 2009 IN CRIMINAL APPEAL NO. OF 2009 Vaibhav Nagri Patsanstha, Vita ...Applicant. v/s. Alamgir Roshan Mulla & Anr. ...Respondents. Mr. Amit Sale, adv. For the Applicant. Mr. P.S.Hingorani, APP For the Respondent No.2. CORAM : J.H. BHATIA, J. DATED : MARCH 23, 2011. P.C. 1 Heard the learned counsel for the applicant. This application is filed seeking leave to prefer appeal against the order of acquittal under Section 256 of the Cr.P.C. passed by the learned Magistrate. After service to the respondent no.1/accused, nobody had appeared, therefore, on 5th March, 2010 fresh notice was directed to be issued with clear indication that the matter may be finally disposed off at the admission stage. In spite of service of the second notice also, none appears for the respondent no.1. 2 Heard the learned counsel for the applicant and perused the record. Record reveals that complaint under Section 138 of the Negotiable Instruments Act was filed by the present applicant in the 2 Court of J.M.F.C., Vita dated 27.8.2008 and it was registered as Criminal Case No.155 of 2008. Process was issued and after service of the process, accused appeared on 16.4.2008. On the same day, his plea was recorded. He pleaded not guilty and matter was adjourned for hearing on 24.4.2008. On that day, though the complainant was present, his advocate was not present and, therefore, the matter was adjourned to 30.4.2008. On 30.4.2008 representative of the complainant and the advocate both were present but the application for adjournment was filed . That application was granted subject to the cost of Rs.100/- and the matter was adjourned to 7.5.2008. On 7.5.2008 matter was adjourned 15.5.2008. On that day complainant and his advocate both were absent and application for adjournment filed on behalf of the complainant was granted subject to cost of Rs.200/- and the matter was adjourned to next day, i.e., on 16.5.2008. On 16.5.2008 again the complainant and his advocate were absent. Complainant had also not paid cost as per the earlier two orders. On 16.5.2008 no application for adjournment was filed on behalf of the complainant. In these circumstances, complaint was dismissed for want of prosecution and the accused was acquitted. That order is sought to be challenged in the appeal before this Court. 3 Complainant is the Co-operative Credit Society and the 3 cheque amount was Rs.2,68,484/-. It appears that due to negligence of the office bearers of the complainant/society and its advocate, the learned Magistrate was compelled to dismiss the complaint for want of prosecution and to acquit the accused. However, it has to be borne in mind that it was huge amount for Co-operative Credit Society situated in taluka place. Amount of the society is the money of a large number of members of the society as well as the amount raised by the society from different sources. Taking into consideration these circumstances, in my opinion, it will be in the interest of justice to grant leave subject to cost. Once the leave is granted in view of the above circumstances, appeal has to be allowed and the matter has to be remanded back to the trial Court for trial as per law, therefore, I pass following order: 4 This application for leave to prefer appeal against the acquittal is granted subject to depositing cost of Rs.3,000/- with Legal Aid Authority within four weeks. 5 Appeal be registered and for the reasons given above, the appeal is also hereby allowed and the impugned order of the dismissal of the complaint and the acquittal of the accused is hereby set aside and Criminal Case No.155 of 2008 is hereby remanded back to the Court of J.M.F.C., Vita, Sangli for trial as per law. 4 6 In case, cost is not deposited with the legal aid authority within four weeks, application as well as appeal shall be deemed to have been dismissed. (J.H. BHATIA,J.)