1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL STAMP NO. 223 OF 2009 Mr. S.B.Ghute, Advocate for Appellant. Mr. B.V.Wagh, A.P.P. for State. Mr. V.H.Solanke, Advocate for respondent no. 1. [ CORAM : P.R.BORKAR, J. ] DATE : 05/03/2010 PER COURT : 1. Heard Mr. S.B.Ghute, Advocate for the Appellant, Mr. V.H.Solanke, Advocate for respondent no. 1 and Mr. B.V. Wagh, learned A.P.P. for State. 2. Admit. 3. Issue notices after admission to the respondents. Mr. V.H.Solanke , Advocate waives notice for respondent no. 1 and Mr. B.V. Wagh, A.P.P. for State waives notice for respondent- State. 4. This Appeal is taken for final hearing immediately with consent of parties. This is an Appeal filed against the order of discharge of accused and dismissal of S.C.C. No. 284 of 2005 by the J.M.F.C., Osmanabad on 17/2/2009. 5. The brief facts giving rise to the Appeal are as under : 2 The present appellant has filed complaint against respondent no. 1 for committing offence U/s 138 of the Negotiable Instruments Act and U/s 420 of the Indian Penal Code. It is alleged that the respondent no. 1 had taken advance towards transport contract with the petitioner and towards this advance amount, he issued cheque of Rs. 19,077/-, but the said cheque was dishonoured. No payment was made in spite of issuance of notice. 6. It is also not disputed that when the matter was called on 17/2/2009, the appellant so also his Advocate were absent and the Appeal came to be dismissed in default. The accused was discharged. A copy of the Roznama is produced on record in the Criminal Application No. 1045 of 2009. The said Roznama shows that the complaint was lodged on 15/2/2005. The complaint was presented. He had also taken steps by filing application for issuing notice. The last application was given on 14/8/2007 for issuing summons of accused. Thereafter the complainant was present, but the summons was not received back on 26/9/2007, 15/11/2007 and 31/12/2007. However, the complainant was absent on 4/4/2008 and 10/9/2008. The Court was on leave on 10/9/2008. On 6/11/2008, the complainant was present but on that date the Court was on leave. Again on 7/12/2009, the complainant and his Advocate were absent. The complainant has not taken any steps and, therefore, the complaint was dismissed. 7. The reasons are stated in ground nos. 12 & 14 of Appeal 3 about the absence of the complainant for last two days. He has stated that on 17/2/2009 his Advocate has immediately left the Court as he received the message of death of his close relative in road accident. Therefore, the appellant could not take steps. The reason is proper and deserves to be considered. At the same time, the respondent has to engage Advocate and has to incur expenses and hence he is entitled to the costs. 8. In the result, the Appeal is allowed. The order passed by the J.M.F.C., Osmanabad in S.C.C. No. 284 of 2005 on 17/2/2009 is hereby set aside. The Magistrate is directed to restore the complaint on her file and then proceed with the complaint according to law. The complainant to pay costs of Rs. 2,000/- (Rupees Two Thousand only ) to the respondent within the period of 4 weeks i.e. 2/4/2010. The parties agree to appear before the trial Court on 15/4/2010. [ P.R.BORKAR ] JUDGE knp/Cri. Appeal Stamp 223.09