1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPLICATION NO.2672 OF 2008 (for leave to appeal) Kotak Mahindra Bank Ltd. ...Applicant Vs. Kedia Distilleries Ltd. & Ors. ...Respondents Mrs.Revati Mohite-Dere, Advocate for the Applicant Mr. Devasis Mitra, Advocate for Official Liquidator, Madhya Pradesh Mrs. V.R. Bhosale, A.P.P for the state CORAM: SMT.ROSHAN DALVI, J. DATED: 5TH NOVEMBER, 2009 P.C. 1.This application is for grant of leave to appeal against the judgment and order dated 29th January 2008 passed by the learned Metropolitan Magistrate, 12th Court, Bandra under C.C.No.401/S/2002. The order of the learned Metropolitan Magistrate is passed under Section 256 of the Cr.P.C. The complaint of the Applicant herein has been dismissed for default of appearance. The Roznama of the Court shows as many as 56 dates of hearing over a period from 17th January 1996 to 29th January 2008 i.e. 12 years. At such a length of time the complainant cannot be expected to remain present on each and every occasion. It will have to be seen whether the complainant has been absent only on certain 2 occasions during the 12 years period that the complaint remained pending in the Metropolitan Magistrate s Court. A reading of the Roznama shows that the complainant was indeed present on a number of occasions. However, the Roznama also shows that the complainant was absent on the last 3 dates of hearing including the date when the complaint came to be dismissed. These were on 7th May 2007, 27th August 2007 and 29th January 2002. 2.Interest of justice would demand that the complaint be heard on merits since the complainant has remained present on a number of occasions, but when evidence could not be recorded by the learned Magistrate. This however can be only upon payment of costs by the complainant to the Legal Services Authority, High Court, Bombay in a sum of Rs.3000/-condition precedent. Upon the complainant paying costs the learned Magistrate is requested to proceed with the complaint in accordance with law. 3.It is pointed out that the accused No.1 Company has been ordered to be wound-up. Official Liquidator is appointed. No mens rea is shown against the Official Liquidator. The complaint can be proceeded against the other accused who are the Directors of the Company, but not against the Official Liquidator. The applicant shall take all the necessary steps to delete the name 3 of accused No.1 to show that the Company has been ordered to wound-up and that the Official Liquidator has been appointed. 4.The complainant shall be entitled to and allowed to proceed against the Directors of the Company also as per law. 5.Criminal Application as well as Criminal Appeal are disposed off accordingly. (SMT. ROSHAN DALVI, J.)