/ 1 / IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1439 OF 2008 Rama Vinod Kunder ...Applicant Vs. Noorunissa Sayeed Mukadam & Ors. ...Respondents --- Ms. Sartaj Shaikh for Applicant Mr. D.P. Adsule APP for State ---- CORAM: V.M. KANADE J. DATED 15TH DECEMBER, 2008 P.C. 1. Heard the learned Counsel appearing on behalf of the Applicant and the learned APP for the State. 2. Leave is granted. Appeal is taken up for hearing, forthwith. 3. The Applicant is the original Complainant and is challenging the order passed by the Magistrate dated 24.3.2008, whereby he was pleased to dismiss the complaint under section 256 of the Criminal Procedure Code, since the Applicant and his advocate were absent when the matter was called out. 4. The learned Counsel appearing on behalf of the Applicant has invited my attention to the Roznama. He submitted that the Complainant had been diligent and had attended the Court regularly. She submitted that on one earlier date, the Complainant could not remain present since she was unwell. / 2 / 5. I have perused the Roznama. The Roznama indicates that the Complainant was diligent. Under these circumstances, in my view the Trial Court has not exercised the discretionary power vested in it under section 256 of the Criminal Procedure Code while dismissing the complaint. It is well settled position in law that the discretionery power vested in it under section 256 of the Criminal Procedure Code has to be exercised judiciously. It is not as if the Complainant has remained absent for more than three dates or that the case was pending for a long time and that the presence of the Complainant was necessary on that date. Therefore, in my view, the Learned Magistrate was not justified in dismissing the complaint. The Impugned order is set aside. 6. Complaint is restored to the file. Both the parties shall appear before the Magistrate on 8th January, 2009. V.M.KANADE J.