1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2728 OF 2008 Om Bajarang Sahakari Kukut Vyavasayic Sanstha Maryadit ..Applicant -versus Sri Sadguru Sahakari Kukut Vyavasayic Sanstha Maryadit .. Respondents Shri U.B.Nighot for the applicant Shri Amit Sale for respondent No.1. Shri Y. S. Shinde, APP for the state . CORAM: A. S. OKA, J DATED: 2nd March,2009 JUDGMENT 1. Heard the advocate for the applicant and the advocate for second respondent. In view of order dated 11th September, 2008, leave is granted and the appeal is forthwith taken for final disposal. It must be stated that though appearance of Mr.Amit Sale, learned advocate is shown for first respondent, in fact he is appearing for second respondent. The office noting shows that the first respondent has been duly served. 2. The applicant filed a complaint under section 138 of the Negotiable Instruments Act, 2 1881 (hereinafter to be referred to as “Said Act”). The order of acquittal has been passed by the learned Magistrate in exercise of powers under section 256 of the Code of the Criminal Procedure,1973 (hereinafter referred as “said Code”). In the impugned order it is stated that the applicant has not complied with the order dated 4th December 2007 passed below Exhibit l8. It is stated in the order that the applicant/complainant has not taken appropriate steps and he was not co-operating for the expeditious disposal of the complaint. 3. The learned counsel appearing for the applicant has taken me through the xerox copy of the roznama of the proceeding of the complaint. After inviting my attention to the various entries in the roznama of the proceedings, he submitted that there is no neglect or default on the part of applicant in prosecuting the complaint. He urged that the learned Judge could not have exercised the power under section 256 of the said Code. 4. The learned counsel for the second respondent pointed out that the authorized representative of the applicant was repeatedly absent before the Trial Court. He submitted that on some of the dates fixed in complaint, even the advocate for the applicant was absent. He submitted that in the complaint of the year 2005, 3 steps were not taken by the applicant and therefore, on 2nd June 2008, the learned Judge has rightly exercised the power under section 256 of the said Code. He, therefore, submitted no interference is called for. 5. I have given careful consideration to the submissions. I have also perused the copy of the roznama. The complaint appears to have been filed on 2lst September,2005. After recording the verification statement, process was issued in the complaint. The roznama dated 29th June 2005 shows that after service of summons the second accused appeared through advocate and applied for grant of bail. The roznama of the same date shows that the case was adjourned to 29th July, 2006 for return of service of the first accused. On 29th July 2006, the case was adjourned to 4th September,2006 for taking appropriate steps for effecting service of summons to the first accused. On next date ie 23rd March,2007, an application was made by the applicant for issuing summons and for effecting service of summons by appointing special PSI. On the said application, an order was passed on 4th December,2007 directing that warrant should be served through the local police station. On 24th January, 2008 and 11th February 2008 the complaint was adjourned as due steps were not taken by the applicant. The roznama dated 13th March, 2008 shows that on application made by the applicant at Exhibit 20, 4 an order was passed directing compliance with the earlier order of serving warrant to the first accused through the local police station. Therefore, the complaint was adjourned to 29th April,2008. On 29th April, 2008 and 2l st May,2008, the complaint was adjourned for taking appropriate steps. On 2nd June, 2008, the impugned order has been passed. 6. It must be noted here that on 24th January,2008, 1st February, 2008 and 29th April, 2008 the advocate for the applicant was present. On 13th March,2008 and 2lst May, 2008, applicant along with advocate were present. 7. The perusal of the roznama shows that the applicant has been diligently prosecuting the complaint. It is true that on 29th April, 2008 and 2lst May,2008 time was granted to the applicant to take appropriate steps. Earlier roznama shows that steps were taken from time to time by the applicant by applying for warrant against first accused. Therefore, this is a case where there was no negligence on the part of applicant. In any case the applicant had served summons to the second accused and second accused was appearing before the Trial Court. There was no reason to pass an order of acquittal of the second accused. In fact on 2lst May, 2008 and on 2nd June,2008 second accused was absent. 5 8. After having perused the roznama of the case, I am satisfied that the view taken by the learned Judge is not only harsh but the order impugned is illegal. In my view, one more opportunity deserves to be granted to the applicant to proceed with the complaint. Hence I pass the following order. ORDER. I)The impugned order dated 2.6.2008 is set aside. The complaint (C.C. No.696 of 2005) is hereby restored to the file of the learned Judicial Magistrate First Class at Bhor. II)The learned Magistrate shall issue fresh summons to the accused and thereafter will proceed with the complaint from the stage at which it was pending on 2nd June, 2008. III)It is made clear that all the contentions of the parties on merit are expressly kept open. IV)Application and Appeal are accordingly allowed. V)Writ to be sent expeditiously. (A.S.OKA, J)