Vipul Jaswantlal Shah v. Kalpesh P.Patel Prop.of M/s.Dhurv Impex & Ors.

the first respondent for offence under section 138 of the Negotiable Instruments Act,1881. 2 The petitioner made an application on 28th September 2008 before the trial court praying for dismissing of the complaint on the ground that the first respondent- complainant and the Advocate for the first respondent were persistently absent. The said application was rejected by the learned Magistrate. A revision application filed by the petitioner against the said order has been dismissed by the Sessions Court. 3 The learned counsel for the petitioner has placed reliance on the decision of this court in case of Sonam 2 Finance Lease Co.Pvt. Ltd. Vs. Vasantsingh Shankar Narayansingh & another (2008 2 Bombay Cases Reporter (Cri) 315). She submitted that in the reply filed by the complainant, there is no explanation given for the long absence of the complainant before the trial court. She submitted that when the complainant persistently remained absent, the learned Magistrate had no option but to pass an order of dismissal.

4 I have carefully considered the submissions. I have carefully perused the roznama of the case. The order of the learned Magistrate of not dismissing the complaint in exercise of the power under section 256 of the Code of Criminal Procedure,1973 is a discretionary order which has been confirmed in the revision application. In this writ petition under Article 227 of Constitution of India, no interference is called for with such discretionary order. The petitioner has also invoked section 482 of the Code of Criminal Procedure,1973. It is settled law that inherent power has to be exercised sparingly and in very rare cases. Apart from this, I have perused roznama of the case. Perusal of the roznama shows that on 21st August 2008, the complainant was absent. On the very day, plea of the accused-petitioner was recorded and the case was adjourned to 29th August 2008 for recording of examination in chief.

Roznama shows that on 29th August 2008, 30th August 2008 and on 20th September 2006 the 3 complainant was absent and even Advocate for the complainant was absent. However, further Roznama shows that on 25th September 2008, 6th October 2008, 22nd October 2008, 18th November 2008, 4th December 2008, 5th December 2008 and 6th December 2008 the complainant was present along with his Advocate. 5 Considering the aforesaid aspects petition is rejected. The learned counsel for the petitioner stated that thereafter the complainant has remained absent. If this is so, it is for the petitioner to file appropriate application in that behalf. JUDGE