IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.278 OF 2009 Shashikant Wadilal Shah .. Applicant Versus State of Maharashtra & Anr. .. Respondents Mr.Shashikant Shah, applicant appearing in person. Mr.P.A.Pol, A.P.P for the State. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 13th March 2009. : 13th March 2009. : 13th March 2009. P.C.: . On 29th January 2008 this Court issued notice to the 2nd respondent. The order dated 29th January 2009 records that if leave is granted, the appeal will be forthwith taken up for final disposal at admission stage. The office noting shows that the 2nd respondent has been duly served. Heard the applicant appearing in person. Leave is granted. In terms of order dated 29th January 2009, the appeal is taken up forthwith for final disposal. 2. The applicant filed a private complaint against the 2nd respondent alleging commission of offence under section 138 of the Negotiable Instruments Act, 1881. (2) The learned Metropolitan Magistrate by order dated 04th March 2008 exercised power under section 256 of the Code of Criminal Procedure, 1973 and acquitted the 2nd respondent accused. The learned Judge observed that the complainant was continuously absent. 3. I have perused the averments made in the application for leave. I have also perused the roznama of the proceedings. The complaint is filed in April 2007. The roznama shows that on 03rd May 2007, 07th May 2007, 07th July 2007 and on 06th September 2007 the applicant/complainant appeared before the learned Magistrate. The roznama dated 14th November 2007, 28th December 2007 and 31st January 2008 shows that the applicant was not present. On 31st January 2008 the advocate for applicant was present. 4. Perusal of the application of the leave records that the applicant and his wife had been to United States of America from 25th September 2007 to 21st March 2008 as they were required to attend to family problem of their daughter who is resident of United States of America. It is stated that the applicant was forced to stay with his daughter till 21st March 2008 as daughter was sick and was having family problems. (3) 5. An averment has been made in the application that the applicant had informed his advocate about his visit to United States of America but the advocate did not appear and apply for exemption. These averments made in the application have not been disputed by the 2nd respondent. The perusal of the roznama shows that from 21st April 2007 till 06th September 2007 the applicant was diligently prosecuting the complaint. The applicant has produced evidence on record in the form of air tickets and entries on the passport to show that he was abroad during the said period from 25th September 2007 to 21st March 2008. Hence, this is not a case where there is any neglect or deliberate failure on the part of the applicant to prosecute the complaint. Hence, an opportunity deserves to be granted to the applicant to prosecute the complaint. 6. Hence, I pass the following order: (i) The impugned order dated 04th March 2008 is quashed and set aside. (ii) The complaint bearing CC No.620/SS/2007 is restored to the file of the learned (4) Magistrate. (iii) The learned Magistrate will issue fresh summons to the 2nd respondent accused and will proceed with the case from the stage at which it was pending on 04th March 2008. (iv) Writ to be sent early. (A.S.Oka,J)