By the present Appeal, the Appellant-Original Complainant in Case No.10/S of 1984 of the 29th Court of Metropolitan Magistrate, Dadar, Bombay, has challenged the order dated 18.06.1993 passed under Section 256 of the Code of Criminal Procedure, dismissing the said case and acquitting Respondent No.2 (original accused no. 1) and co-accused in the said case. The said case was initiated against Respondent No.2 and two more accused persons, upon a private complaint preferred by the Appellant against them for commission of offence under Sections 500, 501 and 502 of the Indian Penal Code.

2. Having regard to the controversy involved in the present appeal, it is wholly unnecessary to narrate subject matter in said complaint. Upon the said complaint on 9th March, 1984 learned trial Court was pleased to issue process against Respondent No.2 and two more accused for offences under Section 500, 501, 502 of the Indian Penal Code. During the course of said Proceedings, on 13th December, 1985, the trial Court explained particulars of offence alleged against them in complaint to all said accused. All of them pleaded not guilty to the same and claimed to be tried. On 5th August, 1988 the Original accused no.3- T.T. Pithawala having passed away, the case against him abated. The recording of evidence of the complainant i.e. PW-1 commenced on 18th November, 1988 and the same having remained incomplete, was continued on 2nd December, 1988. On the said date after recording of the examination-in-chief of the complainant was over, the matter was required to be adjourned to 6th January, 1989 in view of request made on behalf of the accused and consent to same given by the complainant. The same was required to be adjourned again on the said date to 10th February, 1989 due to the absence of complainant and even thereafter on many dates until 14th May, 1993, either on the count of either of the party or both the parties being not present.

3. Ultimately, on 18th June, 1993 the trial Court observed that the appellant/complainant and her advocate were absent and they were not attending the Court since 22nd January, 1993 and as such she was not interested in prosecution of the accused. The trial Court dismissed the said complaint for nonappearance of the complainant and acquitted both the accused in the said case.

4. The appellant thereafter preferred an application for Special Leave to appeal under Section 378(4) of the Code of Criminal Procedure and the same was granted on 21st July, 1995 and the appeal was admitted. It will not be out of place to state that though by the said order, both the accused were acquitted by the trial Court, the appellant had sought special leave to prefer the appeal only against the present Respondent No.2.

5. Mrs. V. V. Thorat, karned counsel appearing for the Appellant It the hearing of this appeal pointed out to the Court that the complainant has filed the complaint in the year 1984. It is submitted that she is now 88 years old and as such is not in a position to proceed with a case instituted by her, due to the old age and sickness. She submitted, in view of the same, the complainant is not pressing the present appeal and as such appropriate orders permitting withdrawal of same or otherwise may be passed.

6. Mr. Naik, learned counsel for Respondent No.2 thereon rightly submitted that present appeal being admitted by the Court and as there exist no provision for withdrawal of the criminal appeal, once the same is admitted, the present appeal can neither be permitted to be withdrawn nor the same can be dismissed for default due to being not pressed. By drawing attention to the provisions of Section 251 to 259 of the Code of Criminal Procedure, the learned counsel further urged that the complaint in question being entertained for the offence punishable up till two years, it was necessary for the trial Court to follow the procedure prescribed under the said sections for trial of the summons cases by the Magistrate. He f