IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2426 OF 2007 CRIMINAL APPLICATION NO. 2426 OF 2007 CRIMINAL APPLICATION NO. 2426 OF 2007 State Bank of India ...Applicant (Orig.Complainant) vs. State of Maharashtra & Anr. ...Respondents (Respondent no.2 is Original Accused) Mr.Jay K. Bhatia for the Applicant. Mr.P.A. Pol, APP for the State. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : OCTOBER 13, 2008 DATED : OCTOBER 13, 2008 DATED : OCTOBER 13, 2008 P.C. :- P.C. :- P.C. :- 1. Heard Counsel for the applicant. None appears on behalf of the respondent though he is served. Counsel for the applicant undertakes to file affidavit of service within a period of one week from today. 2. The applicant is challenging the order passed by the trial court whereby the trial court was pleased to dismiss the complaint filed by the applicant herein under Section 256 of the Cr.P.C. It is stated that the applicant and his Advocate are absent and that no steps are taken for serving the respondent accused. 3. Counsel appearing on behalf of the applicant - 2 - submits that the date which was given by court clerk was 20th April, 2007, however, the case was taken up for hearing on 19th April, 2007 and therefore, the complainant and his Advocate did not remain present. 4. Perused the Roznama. In my view, the complainant was justified in not remaining present on 19th since the matter was adjourned to 20th April, 2008 and not 19th. The learned Magistrate ought to have exercised the discretion vested in him under Section 256 of the Cr.P.C. in a proper and just manner. Prima facie case is, therefore, made out by the applicant for setting aside the impugned order passed by the learned Magistrate dismissing the complaint for want of prosecution. 5. The impugned order is set aside. Appeal is allowed. The hearing of the criminal case is expedited. Fresh notice be served on the respondent accused. The complainant to take steps to serve the respondent, expeditiously. - 3 - 6. Application is disposed of. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)