PANKAJ PREMJI DEDHIA Vs. JAYANT PAPER MILLS LTD

JUDGEMENT

(1.) By order dated 11th February, 2009, this Court directed that these applications and appeals will be heard and disposed of finally.

(2.) Accordingly, I have taken up the matters for final hearing. The facts of both these applications are more or less identical. Therefore, I am referring to the facts of the case in Criminal Application No. 627 of 2003. The applicant is the complainant who filed a complaint under section 138 of the Negotiable Instruments Act, 1881. The complaint has been dismissed by order dated 28th November, 2002 by the learned Magistrate in exercise of power under section 256 of the Code of Criminal Procedure, 1973. The order was passed by recording that though the complaint was fixed for recording of evidence, the applicant/complainant was absent and even his Advocate was absent.

(3.) The learned counsel for the applicant has invited my attention to the Roznama of the proceedings of the case as well as the averments made in paragraph 2 of the application. His submission is that on 16th November, 2002, the applicant could not reach the Court of the Magistrate before the matter was called out. The learned Magistrate recorded the plea of the accused. It is pointed out that when the applicant enquired with the Sheristedar, he was informed that the case was adjourned to 4th January, 2003. He was not aware that the case was fixed for recording of evidence on 28th November, 2002. He submitted that there is sufficient explanation for absence of the applicant on the day on which the complaint was dismissed. The learned counsel for the respondents No. 1 to 4 (accused) submitted that there is no explanation for the absence of the applicant and the Advocate for the applicant. He submitted that the complaint was filed in the Court of Metropolitan Magistrate at Mulund. He pointed out that both the applicant and his advocate are resident of Mulund and the accused attended the Court at Mulund by all the way coming from Vile Parle. He submitted that a fresh plea of the accused was recorded on 16th November, 2002. Though the case was fixed for recording of evidence on 28th November, 2002, the applicant had chosen to remain absent. He submitted that no case is made out for interference. He relied upon the decision of this Court in case of M/s Sonam Finance Lease Company Pvt. Ltd. vs. Vasantsingh Shankar Narayansingh and another, 2008 All M.R. (Cri) 2762. The learned counsel for the applicant has placed reliance on the decision of the Apex Court in case of Mohamed Azeem vs. A. Venkatesh and another, 2002(7) SCC 726.