1 Apeal 354-2011 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.354 OF 2011 Subhash Babulal Jain .Appellant V/s. Siddharth Homoeo Pharmacy & ors .Respondents Mr.Ramesh Jain, Advocate, for the Appellant Mr.Jamshed Ansari, Advocate, for Respondent No.2 Mr.Rajesh More, APP, for Respondent No.4 - State CORAM : R.C.CHAVAN, J. DATE : 2ND AUGUST, 2011 P.C. . Heard the learned Counsel for the respective parties. 2. This appeal was admitted by granting leave on 8th April, 2011, since it is against order dismissing the complaint in default. It is taken up for final hearing by consent. The appellant  complainant before the Metropolitan Magistrate, 62nd Court, Dadar claims that on 8th July, 2010 when he applied 2 Apeal 354-2011 for adjournment, he felt that the matter was adjourned to 23rd July, 2010. However, the matter was in fact adjourned to 22nd July, 2010. Therefore, on 22nd July, 2010 when the complainant was absent, the learned Magistrate proceeded to dismiss the complaint. The learned Metropolitan Magistrate was then moved on the next day for reversing dismissal of the complaint but he refused to entertain the application. The learned Counsel for the appellant states that the appellant wrongly believed that the matter kept on 23rd July, 2010 and therefore, appeared before the Court on 23rd July, 2010. The learned Counsel for respondent No.2 states that the appellant had been negligent in prosecuting complaint and the complaint was in fact, dismissed against the original accused No.3 for a lapse on the part of the appellant. Also, out of 13 dates on 10 dates the complainant was absent and therefore, the learned Counsel submits that the order passed by the learned Magistrate 3 Apeal 354-2011 does not call for any interference. 3. The application for adjournment filed on 8th July, 2010 shows that it had been allowed appellant's paying subject to costs of Rs.150/- It does not appear that the appellant deliberately failed to appear before the Court on adjourned date of hearing, since otherwise there was no reason for him to appear on 23rd July, 2011. In any case, it is always desirable to have the matter decided on merits rather than its being disposed of in this fashion. Therefore, though the arguments advanced by the learned Counsel for the respondent No.2 have considerable merit, the Appeal is allowed. The impugned order is set aside and the complaint is restored to the file of the learned Magistrate subject to appellant's paying costs of Rs.5000/- to the respondent No.2. Costs to be paid within a period of two weeks to the respondent No.2 directly or to be deposited in the trial Court 4 Apeal 354-2011 within a period of two weeks. If the costs are so deposited within a period of two weeks, the trial Court may take up the matter for hearing on 29th August, 2011. If the costs are not so deposited, the order shall stand revoked without further reference to the Court. (R.C.CHAVAN, J.)