1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRIMINAL APPLICATION NO. 1635 OF 2009. IN CRIMINAL APPEAL NO. 270 OF 2009. (Chintaman Fakira Pote .v. Dilip Uttam Dhuldhule) Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. CORAM : A.P. BHANGALE, J. 15TH JANUARY, 2010. Shri H.R. Dhumale, the learned Counsel for the applicant states that the non-applicant is duly served but remained absent. Considering the reason stated in the application as also orders sought to be impugned, arguable case is made out for grant of leave. Leave is granted. Criminal Application is allowed accordingly. CRIMINAL APPEAL NO. 270 OF 2009. Heard Shri H.R. Dhumale, the learned Counsel for the appellant. At the request of learned Counsel for the appellant, Admitted and taken up for final hearing. It appears that the order which is sought to be impugned was passed by JMFC, Pusad in Criminal 2 Complaint Case No. 371/2004 on the ground that the complainant and his Advocate were absent. The case was dismissed in default pursuant to the application filed by the accused. It is the grievance of the appellant that one Balu Chintaman Pote aged about 19 years died as a result of mishap caused by the accused who was driving tractor rashly and negligently on 2nd November, 2004 at about 07:00 p.m. To 07:30 p.m. In the area known as Mhaismal Shivar. The death of son of the appellant was caused solely because of rashness and negligence of the accused in driving the tractor. The police had not taken action despite the report about this incident lodged on 3rd November, 2004 and, therefore, the appellant had moved complaint which was also verified by the learned Magistrate concerned and process was issued. Under these circumstances, the learned Counsel for the appellant contended that the respondent/accused is avoiding to attend the Court despite service of this proceeding upon the respondent. It is, therefore, submitted that the complainant be given opportunity to prosecute the accused on merits in accordance with law. Learned Counsel for the appellant placed reliance upon India Fintrade Ltd. .v. Cherry Fashions Ltd. and others (reported in 2009 All MR (Cri) 1657) 3 decided by Bombay High Court in which it was observed that while passing order under Section 256 of the Code of Criminal Procedure, the learned Magistrate has to exercise discretion after considering the conduct of the applicant. In a ruling of Pankaj Premji Dedhia .v. Jayant Paper Mills Ltd. and others (reported in 2009 All MR (Cri) 1090), this Court had expressed views that an opportunity deserves to be granted to the applicant to prosecute the complaint if there is sufficient explanation for absence of the complainant. I think the appellant has tendered sufficient explanation. He was not negligent or lethargic to follow the remedy but due to reasons beyond his control and mistaken advice to file revision. The delay on account of that has already been condoned. The contentions on behalf of the appellant are not contradictory. The impugned order resulted into acquittal from serious accusation. Therefore, the complainant deserves an opportunity. Hence, I pass the following order. The impugned order dated 25.08.2008 in Criminal Complaint No. 371/2004 is hereby set aside. The complaint filed by the appellant herein is restored to the file of the trial Court. The trial Court shall proceed with the complaint from the stage at which it was pending on 25.08.2008. Hearing of the complaint is expedited. The appellant to appear before the learned 4 Magistrate on 1st February, 2010. Intimation of this order be given to the accused. The said order be communicated expeditiously to the trial Court. Criminal Appeal stands disposed of accordingly. JUDGE *rrg.