JAYESH P RATHOD Vs. SOMLING ELECTRONICS PVT LTD

JUDGEMENT

(1.) THIS appeal against acquittal on final hearing board was dismissed in default on 16th February 2009 when both the appellant and the 1st and 2nd respondents were absent. An oral prayer was made immediately made by the advocate for appellant for restoration. Accordingly, the appeal has been restored on oral prayer.

(2.) BY the impugned judgment and order dated 23rd May 2003, the learned Metropolitan Magistrate, 26th Court, Borivali, Bombay has dismissed the complaint filed by the appellant by exercising powers under section 256 of the Code of Criminal Procedure, 1973. The complaint was filed alleging commission of offence under section 138 read with section 141 of the Negotiable Instruments Act, 1881.

(3.) GOING by the roznama of the proceedings, from 12th May 2000 till 14th January 2003 there was no default on the part of the appellant. On 04th March 2003 the appellant remained absent but the plea of the accused was recorded on the same date. Thus, except on 04th March 2003 and 23rd May 2003, there was no default on the part of the appellant. The case was adjourned from time to time on earlier dates for reasons which were beyond the control of the appellant. Considering these peculiar facts, I find that a very harsh view has been taken by the learned Magistrate by exercising powers under section 256 of the said Code. One more opportunity deserves to be granted to the appellant to prosecute the complaint. Therefore, the impugned order deserves to be quashed and set aside.