Pravin Mane Vs Jayeshbhai Sanghvi and Anr.

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CRIMINAL APPELLATE JURISDICTION

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 CRIMINAL APPLICATION NO.1250 OF 2003
 IN
 CRIMINAL APPEAL NO. OF 2003

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 Shri. Pravin B.Mane ..Applicant

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Vs.

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 Jayeshbhai Sanghvi & Anr. ..Respondents

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 Mr.V.B.Ghorpade Advocate for Applicant
 Mr.G.K.Jadhav for Respondent no.1
 Mr.Rajesh More A.P.P. for the State

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 CORAM: SMT.V.K.TAHILRAMANI,J.
 DATE : SEPT. 2,2005

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P.C.

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 1. Heard the learned advocate for the

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 applicant-original complainant, learned advocate
 for the respondent-original accused and learned
 A.P.P. for the State.

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 2. The applicant i.e. the complainant had filed
 the complaint against the respondents under Section
 138 r.w. 141 of Negotiable Instruments Act and
 under Section 420 of IPC. The said complaint was

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 filed before the learned Metropolitan Magistrate,

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 Vth Court, Dadar, Mumbai. Thereafter it was
 numbered as CC No.408/S/2002. Thereafter, it was
 transferred to the Metropolitan Magistrate, 33rd
 Court, Dadar, Mumbai. By order dated 17.2.2003,
 the learned Magistrate dismissed the complaint as
 the complainant and his advocate were absent.
 Being aggrieved by the said order, the applicant
 has approached this Court.

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 3. I have heard both sides and perused the Roznama
 pertaining to the said case. On 11.7.2002, the
 complainant and his advocate were present. It
 appears that on 18.1.2003, the complainant as well
 as his advocate were absent. As the complainant
 and his advocate were absent, hence, the matter was
 adjourned to 7.2.2003. On 7.2.2003, the respondent
 no.1 accused preferred an application for dismissal
 of the complaint. The matter came to be adjourned
 to 17.2.2003 for orders. On 17.2.2003 again the
 complainant and his advocate were absent and on
 that day, the complaint came to be dismissed.

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 4. The Supreme Court in the case of Mohammad Azeem

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Vs. A.Vankatesh and Anr. [2003 ALL MR (Cri) 400

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(S.C.)] has held that if the complaint has been
 dismissed for non-appearance of the complainant,
 the complaint ought to be restored on file on
 sufficient cause being shown. However, it is
 submitted by Mr.Jadhav that the complainant was not
 absent only on a single occasion but he was absent
 on three occasions and hence, the complaint was
 rightly dismissed by the learned Magistrate.

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 5. It is stated by the learned advocate for the
 applicant that on 17.2.2003 i.e. day on which the
 order of dismissal was passed, the learned advocate
 for the complainant had attended the Court. In
 fact, an application came to be preferred by the
 learned advocate for the applicant seeking
 exemption in respect of personal appearance of the
 complainant as the marriage of the complainant was
 to take place on 20.2.2003 at Satara and hence, it
 was not possible for the complainant to remain
 present before the Court on 17.2.2003. It is
 submitted that when the matter was called out,
 however, the advocate was not present before the
 Court as he was in the High Court at that time.

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 After finishing the matter in the High Court, he
 immediately rushed back to the 13th Court Dadar and
 on learning about the fact that the complaint was
 dismissed, an application came to be preferred for
 restoration of the complaint. However, the
 complaint was not restored, hence, the applicant
 has approached this Court.

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 6. The learned advocate for the respondent has not
 disputed the fact that on 17.2.2003 when the matter
 came to be called out before the learned Magistrate
 and it came to be dismissed, the advocate for the
 complainant was in the High Court conducting a
 matter. So also, he has not disputed the fact that
 the marriage of the applicant was to take place at
 Satara on 20.2.2003. Satara being far away from
 Mumbai, it is quite natural that on 17.2.03 the
 applicant would not be there in Mumbai when his
 marriage was to take place at Satara on 20.2.2003.
 All these facts are not disputed but it is
 submitted that on account of fact that the
 complainant was absent, the complaint was rightly
 dismissed.

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 7. As the learned Magistrate was not aware of any
 of these facts i.e. relating to Advocate for the
 complainant being in the High Court and also the
 fact about the marriage of the complainant on
 20.2.2003 at Satara, I do not find any error on the
 part of the Magistrate in dismissing the complaint.
 However, looking to the facts of the present case
 and in the interest of justice, I am of the opinion
 that the complaint deserves to be restored.

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 8. Even though Section 256 of Cr.P.C. provides
 that the complaint can be dismissed if the
 complainant does not appear, a bare perusal of the
 said Section clearly shows that it is not the only
 option available to the Magistrate if the
 complainant is absent. The latter part of Section
 256 of Cr.P.C. clearly indicates that "the
 Magistrate has another option i.e. to adjourn the
 hearing of the case to some other date. The third
 option which is available to the Magistrate under
 this Section is that, the Magistrate may proceed
 with the case if in the opinion of the Magistrate,
 the personal appearance of the complainant is not
 necessary. The reasons for absence of the

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 complainant can be numerous. Sometimes the reasons
 may be beyond the control of the complainant. If
 the complainant’s presence is not required on that
 particular day, the Magistrate may dispense with
 the attendance of the complainant and proceed with
 the case. On the day that the complaint was
 dismissed, the matter was not specifically kept for
 recording the evidence of the complainant or for
 cross-examination of any witness by the

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 complainant. In such case looking to the facts of
 this case, I am of the opinion that sufficient
 cause has been shown for restoration of complaint,
 hence, the complaint deserves to be restored.

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 9. Thus, the order of the learned Magistrate dated
 17.2.2003 is set aside and in the interest of
 justice, the complaint i.e.CC No.408/S/2002 is
 restored to file. Record and Proceedings be sent
 back to the trial Court forthwith. Parties to
 appear before the trial Court on 3.10.2005.

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 10. At this stage, Mr.Jadhav, the learned advocate
 for the respondent no.1 states that if the
 complaint is being restored then at least, some

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 costs may be paid to respondent no.1. The said
 request is reasonable, hence, the applicant is
 directed to pay costs to respondent no.1 quantified
 at the amount of Rs.2,500/-. The said costs to be
 deposited within a period of three weeks before the
 trial Court. Respondent no.1 is at liberty to
 withdraw the said amount. Parties to remain

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 present before the trial Court on 3.10.2005.

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 11. Application is disposed of.

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 [ SMT.V.K.TAHILRAMANI,J.]

Pravin Mane v. Jayeshbhai Sanghvi and Anr.

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Pravin Mane v. Jayeshbhai Sanghvi and Anr.

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