((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3888 OF 2008 Kishin Doulatram Sadarangani Applicant versus The State of Maharashtra & anr. Respondent Aabad H.H.Ponda for the applicant. S.V.Gavand, adv. for respondent no.2 Ms.A.T.Javeri, APP for State. CORAM : A.S.OKA, J. DATE : 20th March 2009 JUDGEMENT : 1. Heard advocate for the applicant. By order dated 5th January 2009, notice of final disposal of the application as well as appeal was issued by this Court. The second respondent is represented by an advocate. On 12th March 2009 the application was adjourned till today on the prayer made by the advocate for the second respondent. Today, none appears for the second respondent when the matter is called out. 2. The applicant is the complainant in a complaint alleging commission of an offence under section 506(2) of the Indian Penal Code. ((-2-)) The learned Additional Metropolitan Magistrate has passed an order of acquittal of the second respondent-accused in exercise of powers under section 356 of the Code of Criminal Procedure, 1973. 3. The learned counsel appearing for the applicant has taken me through the Roznama of the case, a copy of which is annexed to the application. He pointed out that though the case was adjourned to 25th August 2008, the complaint was taken up on 22nd August 2008. He submitted that the applicant could not have remained present on 22nd August 2009. 4. I have perused the Roznama. It shows that on 12th June 2008 the applicant was absent. The charge was explained to the second respondent-accused and the case was adjourned to 25th July 2008. On that day, the applicant was absent and the case was adjourned to 25th August 2008. The Roznama shows that on 22nd August 2008 the case was taken up. On that day the applicant was absent. An application was moved by the second respondent for dismissal of the complaint by pointing out that the applicant was absent on consecutive days. On ((-3-)) 22nd August 2008, an order of dismissal of the complaint was passed. 5. A perusal of the impugned order shows that the order under section 256 of the said Code has been passed only on the ground of absence of the applicant on 22nd August 2008. In any event, the complaint could not have been called out on 22nd August 2008 as the Roznama clearly shows that the same was adjourned to 25th August 2008. Therefore, there was no justification for the learned Magistrate to have passed an order in exercise of power under section 256 of the said Code. On 22nd August 2008, the applicant was not expected to attend the Court. 6. After the dictation of the judgement commenced, the learned counsel representing the second respondent appeared and he was allowed to make submissions. He pointed out that the entry in the Roznama recorded on 25th July 2008 showing that the case was adjourned to 25th August 2008 is incorrect. He has produced for my perusal a certified copy of the docket of the complaint. According to him on 25th July 2008, the complaint was adjourned to 22nd ((-4-)) August 2008 and a note of that date has been made on the back side of the docket of the complaint. He submitted that the applicant was also absent on the earlier date i.e. on 25th July 2008 and there is no explanation in the application as to how the applicant came to know that next date was 22nd August 2008. He submitted that the applicant was persistently absent as is evidenced from the Roznama of the proceedings and the absence is not confined only to one day. He submitted that no interference was called for. 7. I have perused the certified copy of the docket of the complaint. On the back side of the docket there are certain notings made as to what transpired on 12th June 2008, 25th July 2008 and 22nd August 2008. The said notings do not indicate that on 25th August 2008 the case was adjourned to 22nd August 2008. The noting only records that on 22nd August 2008, the complainant was absent. 8. As per the provisions of Criminal Manual and in particular Chapter-III thereof, the entry of the next date has to be made in the Roznama of the proceedings and not on the ((-5-)) docket of the complaint. In any case, the notings made on the docket do not show that on 25th July 2008 the case was adjourned to 22nd August 2008. It only records what transpired on 22nd August 2008. 9. A perusal of the Roznama shows that on 11th April 2007 the process was issued by the learned Magistrate. There is an entry dated 15th May 2008 in the Roznama recording that the case was adjourned to 5th July 2007 as the learned Judge was on leave. On 5th July 2007, the applicant was absent but even the second respondent was also absent. On undertaking of the advocate for the second respondent that the said respondent will appear on the next date for executing the bond, the case was adjourned to 5th July 2007. It must be noted here that further entry available in the Roznama is of 23rd April 2008 which shows that the applicant was present. The case was adjourned to 12th June 2008. On the said date, the case was not fixed for recording of evidence but the Roznama records that on that day the charge was explained to the second respondent. Thus, the first date fixed for recording of the evidence was 25th July 2008. It is true that on that ((-6-)) day the applicant was absent but the Roznama does not mention that the case was required to be adjourned on the ground of absence of the applicant. On 22nd August 2008, the applicant is shown as absent but the Roznamma of earlier date clearly records that the next date was 25th August 2008 and not 22nd August 2008. 10. There is one more aspect of the matter. In the impugned order the learned Judge has not stated that the complaint was being dismissed as the applicant was persistently absent. The dismissal is on the ground of absence of the applicant only on 22nd August 2008. The said order has been passed on application dated 22nd August 2008 made by the second respondent. There is nothing on record to show that a copy of the said application was supplied to the advocate appearing for the applicant before the Trial Court. The certified copy of the said application shows that the order of dismissal is passed on the very application. 11. Considering all the aforesaid circumstances, the learned Trial Judge has committed an error by exercising power under section 256 of the said Code. ((-7-)) 12. Hence, the complaint will have to be restored by allowing the application. Hence, I pass following order :- (a) The impugned order dated 22nd August 2008 is quashed and set aside and the complaint CC No.137/SS/2007 is restored to the file of learned Magistrate; (b) The learned Magistrate to issue fresh summons to respondent no.2 and will proceed with the case from the stage at which it was pending on 22nd August 2008; (c) Writ be sent immediately. (A.S.OKA, J.)