JUDGEMENT
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(1.)THE appellant-original complainant has filed Revision Application against the judgment and order passed by the learned Judicial Magistrate First Class, Vadodara in Criminal Case No. 4207 of 1997 dated 30. 9. 1999 whereby the learned Magistrate has rejected the said criminal case. The said Criminal Revision Application No. 624 of 1999 was permitted to be converted into Criminal Appeal No. 958 of 2007 vide order dated 11. 7. 2007. By way of this Appeal, the present appellant challenges the aforesaid order. Heard the learned advocate for the parties and the learned APP for opponent No. 1. The appeal is admitted.
(2.)THIS court has gone through the entire rojkam as well as the "no instructions" pursis filed by the advocate of the complainant. No doubt, the complainant has not remained present before the court when the matter was called out. It seems that the RPAD Notice issued through the advocate of the complainant was not served on the complainant and it was returned with an endorsement "not found". This shows that the complainant was not present at the residence when the Notice was sent. Without going into this fact, the trial court has, in haste, passed the order. Had the complainant been informed by his advocate, certainly she would have been present before the court. Be that as it may, in the opinion of this court, the matter has to be decided on merits and it should not be thrown out on technical grounds.
(3.)IN view of the above, the appeal is allowed. The order passed by the trial court is quashed and set aside. The trial court is directed to fix the matter on day-to-day basis for conducting the trial. The complainant will remain present on each date of hearing and if the complainant will not remain present, the trial court will pass appropriate order in her absence.
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