1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.4015 OF 2008 Bhatu Gulabrao Patil Applicant V/s Sau Kanchan Nandkumar Bharati Respondent -------------------------------------------------------- Adv.G.K.Kshirsagar holding for Adv.Mr.N.L.Choudhary ------------------------------------------------------- [CORAM : V.R. KINGAONKAR, J.] [DATE : 22nd July, 2009] PER COURT : 1. The appellant challenges the order of dismissal of the complaint bearing STCC No.3974 of 2006 in default and acquittal of the respondent/accused as a result of such dismissal. 2. Considering nature of the order of acquittal rendered U/Sec.256 of Cr.P.C., leave to appeal is granted. 2 3. Heard Learned advocate for the appellant. Though served the respondent is absent. 4. It is worthwhile to note that the appellant filed private complaint case against the respondent for offence punishable U/Sec.138 of Negotiable Instrument Act alongwith offences U/Sec.420, 468,471 of the Indian Penal Code. The process was issued only for offence U/Sec.138 of the Negotiable Instrument Act vide order dated 07/09/2006, it appears that inspite of service of the summons accused/respondent remain absent. The Learned Magistrate permitted the advocate of the appellant/complainant to take steps by filing application of issuance of bailable warrant. The learned advocate of the appellant did not, however file any such application, of 01/09/2008. The Learned Judicial Magistrate passed the order of dismissal for want of steps which were to be taken by the appellant/complainant. 5. The provisions U/Sec.226 of the Cr.P.C. go to show that the complaint may be dismissed due to non appearance of the complainant . The impugned order does 3 not show that the complainant did not appear before the Learned Magistrate on the gave date. The expression "complainant does not appear " as use in sub clause (1) of Section 256 is not properly appreciated by the Learned Magistrate. The impugned order does not show as to how many opportunities were given to the appellant to take steps for the purpose of issuance of warrant against the respondent. The impugned order therefore suffers from arbitrariness. 6. In the result, the appeal is allowed. The impugned order is quashed and the complaint is restored (STCC 3944 of 2006) to its original position. Learned Magistrate may proceed with the same in accordance with the law. [ V.R. KINGAONKAR ] JUDGE DSP/cri.appl.4015.08