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In the High Court of Bombay at Nagpur
THE HONOURABLE MR. JUSTICE A.P. BHANGALE
Dinesh Govindrao Mahalle
Versus
State of Maharashtra & Another
Criminal Appeal No. 550 of 2009
Decided on : 08-02-2010
Impugned order dated 16th June, 2009 passed by the Judicial Magistrate, FC, Court No. 1, Amravati in Criminal Complaint Case No. 3081 of 07 is quashed and set aside. Criminal Complaint Case No. 3081 of 07 is restored to the file of learned Magistrate. Learned Magistrate will proceed with the complaint in accordance with law after issuing fresh summons to the accused from the stage at which the complaint was as on 16.6 2009. Parties shall appear before Magistrate on 2nd March, 2010.
1. Heard learned counsel for appellant and learned Additional Public Prosecutor for respondent no.1. Admit. R & P dispensed with. Taken up for final hearing forthwith.
2. When criminal complaint case no. 3081 of 07 was fixed for hearing, none appeared for appellant-complainant and, therefore, the Judicial Magistrate, First Class, Court No. 1, Amravati dismissed the same and thereby acquitted respondent no.2-accused. Hence, this appeal.
3. Copy of roznama is filed on record. A perusal thereof shows that the complainant and his counsel were regularly attending the proceedings. In India Fintrade Ltd v.Cherry Fashions Ltd & ors reported in 2009 All MR (Cri) 1657 this Court has held that power to dismiss the complaint under Section 256 Cr.P.C. cannot be exercised only on account of absence of complainant, but the Magistrate has to exercise discretion after considering the conduct of the complainant. Conduct of the complainant in the complaint, on perusal of the roznama, appears to be unblemished. Hence, in the interest of justice, appeal is allowed as under.
4. Impugned order dated 16th June 2009 passed by the Judicial Magistrate, FC, Court No.1, Amravati in Criminal Complaint Case No. 3081 of 07 is quashed and set aside. Criminal Complaint Case No. 3081 of 07 is restored to the file of learned Magistrate. Learned Magistrate will proceed with the complaint in accordance with law after issuing fresh summons to the accused from the stage at which the complaint was as on 16.6.2009. Parties shall appear before learned Magistrate on 2nd March 2010.
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