Oral Judgment:

1. Heard learned counsel for appellant. Mr Mahesh Rai, learned counsel appearing for respondent on delay condonation application is also present before the Court. Even though he is personally present before the Court, he is insisting on the Court to issue notice to respondent and regrets his inability to argue the matter. Since the controversy is in narrow campass and legal position is settled on the issue involved, notice to respondent is dispensed with.

2. Leave to appeal granted. Admit. R & P dispensed with. Matter is taken up forthwith

for final disposal. Heard learned counsel for appellant.

3. When the criminal complaint case filed by appellant under Section 138 of the Negotiable Instruments Act was fixed for evidence on 6.2.2009, complainant was absent and, therefore, learned 4th Judicial Magistrate, FC, Amravati dismissed the complaint and acquitted respondent/accused.

4. Learned counsel for appellant submits that appellant advanced substantial amount by way of hand loan to accused out of the amount of consideration received by appellant after sale of his house in 1999. He submits that respondent who is close relation of appellant had issued cheque for clearing liability, but that cheque was returned unpaid and thus it had bounced. He undertakes that appellant would now regularly and punctually attend the proceedings if the complaint is remitted back to the learned Magistrate.

5. This Court in Pankaj Premji vl. Jayant Paper Mills and ors reported in 2009 All MR (Cri) 1090 and India Fintrade v. Cherry Fashions and ors reported in 2009 All MR (Cri) 1657 has held that if absence of complainant is duly explained, opportunity deserves to be granted to complainant to prosecute complaint.

6. Having heard learned counsel for appellant at length, in my opinion, recourse to axing down complaint of appellant would not be a proper exercise of the power envisaged in Section 256 Cr.P.C. in view of the age of complainant (which is 91 years) and the fact that complainant was prosecuting his case in person. I am, therefore, inclined to set aside the impugned order and remit the matter back to the trial Court. Hence, the following order.

7. Appeal is allowed. Impugned order dated 6.2.2009 passed by 4th Judicial Magistrate, First Class, Amravati in Case No. 4891 of 04 is quashed and set aside. Said complaint case is restored to the file of trial Court. Matter is remitted back to the learned Magistrate for disposal according to law. Needless to say, learned Magistrate shall proceed with the complaint after issuing fresh notice to accused and from the stage at which it was pending as on 6.2.2009. Parties are directed to appear before the trial Court on 9th February 2010. The Registrar (Judicial) of this Court shall communicate the order to the learned Magistrate expeditiously. Appeal stands disposed of accordingly.