IMPORTANT POINT
The court established that dismissal of a complaint under Sec. 256 of the Code of Criminal Procedure requires careful consideration of the circumstances, and that a complainant's absence on a limited number of occasions does not justify dismissal without exploring other options.

JUDGMENT/ORDER

1. Heard learned Advocate for the Applicant-complainant and learned Advocate for Respondent No.1-accused.

2. The core issue involved in this appeal is whether the Trial Court was justified in exercising the discretion under the provisions of Sec. 256 of the Code of Criminal Procedure when the complainant has not remained present on two dates at the stage of recording the evidence.

3. The Court of Metropolitan Magistrate, 28th Court, Mumbai as per order dtd. 17/9/2022, was pleased to dismiss the complaint for non appearance of the complainant by taking recourse to the provisions of Sec. 256 of the Code of Criminal Procedure. The complainant intends to prefer an Appeal, that's why leave is sought. If the leave is granted, the Appeal will be admitted. If the leave is refused, the Appeal will not be admitted. The complaint was dismissed at pre-trial stage. So the issue can be decided only on the basis of the documents which are filed before this Court.

4. It is true that for deciding the issue of grant of leave this Court is required to go through the documents, so also these documents needs to be perused, if at the Appeal is to be heard after admission. So this Court is required to do the same exercise. Considering limited controversy, the Court has directed on 3/3/2023, to decide this matter finally. In view of that on the last date as well as today, I have heard learned Advocate Mr. Purohit for the Applicantcomplainant and learned Advocate Mr. Dave for Respondent No.1- accused.

Submission on behalf of the appellant.

5. According to learned Advocate Mr. Purohit for the Applicant, non-bailable warrant was cancelled on 6/12/2021, and the plea was recorded behind his back. Then the matter was kept on 15/4/2022, but it was holiday. Thereafter the matter was kept on 11/7/2022, and again on 17/9/2022. The complainant has not remained present on these dates and that's why the impugned order came to be passed on 17/9/2022. According to learned Advocate for the Applicant, absence on these two dates cannot be said to be persistent absence. According to him, on 11/7/2022, he wrongly noted the adjourned date as 27/9/2022, and in fact, it ought to have been 17/9/2022, and that's why on that date his client has remained absent.

6. In support of his contention for restoration of the complaint, he relied upon two orders passed by this Court. They are as follows :

(a) Hirachand Javerchand Jain Vs. M/s. Dev Estates, [Cri.Appeal No.221/2023 dt. 22/02/2023 High Court of Bombay].

(b) Dinesh Maganlal Jadhav Vs. Dhiraj Jawanmal Rawal and Ors., Cri.Appeal No.243/2023 dt. 12/06/2023 High Court of Bombay.

Submission on behalf of the respondent.

7. Whereas learned Advocate Mr. Dave for Respondent No.1 strenuously argued that the cases under Sec. 138 of the N.I. Act needs to be disposed of within a period of six months and there is no reason for absence of the complainant on 11/7/2022, and on 17/9/2022. He supported the order. He has made the following submissions :

(i) When the complainant went to the extent of praying for drastic measure of issuing non-bailable warrant against Respondent No.1-accused on 4/12/2021, he cannot blame the learned Magistrate for dismissal of the complaint due to his absence on two dates.

(ii) The warrant was cancelled on 6/12/2021, and the plea was recorded on the same date. The complainant was negligent in getting executed the non-bailable warrant and he has kept quite.

(iii) The complainant ought to have seen the roznama which is uploaded on the website and on 11/7/2022, he ought to have remained present.

(iv) The learned Magistrate has passed the order on Exhibit-1 dtd. 11/7/2022. Copy of the said order is on page 12. The order reads thus :

"Steps not taken since long. Hence, kept for further orders".

(v) After 11/7/2022, the complainant was given two months period and neither he has filed an affidavit nor he has remained present.

8. The Hon'ble Supreme Court and this Court has decided the issue about restoration of th