( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2376 OF 2009 WITH CRIMINAL APPLICATION NO. 2375 OF 2009 Baburao Baliram Avhad, R/o Pawarwadi, Taluka Chalisgaon, Dist. Jalgaon. APPLICANT VERSUS Rameshwar Namdeo Kumavat, R/o Patna Devi Road, Ahilyabai Nagar, Chalisgaon, District Jalgaon. RESPONDENT ..... Mr. P.B. Patil, advocate holding for Mr. H.D. Patil, advocate for the applicant. Mr. Shaikh Naseer, advocate for the respondent. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 9th October, 2009] PER COURT : 1. The application for condonation of delay, leave to appeal and the appeal itself are being simultaneously heard and disposed of. 2. There is delay of 181 days in filing of the ( 2 ) application for special leave to appeal. The private complaint case (SCC No. 1269/2006) for offence punishable under section 138 of the Negotiable Instruments Act was filed by the applicant (appellant). He alleged that the respondent issued a cheque in his favour for Rs. 50,000/- which was amount he owed from the latter. The cheque was dishonoured when presented for encashment to the Bank. The notice of demand was not complied with and it was not accepted at all by the respondent. Consequently, he instituted the private complaint case for the offence punishable under section 138 of the Negotiable Instruments Act. He was found absent on 11-11-2008 and, therefore, complaint case was dismissed in default by the learned Magistrate. 3. There is no dispute about the fact that the complainant filed revision application before the Sessions Court against the order of dismissal. The revisional Court dismissed the revision petition because it was not maintainable. The time spent before the wrong forum is said to be excluded. It appears that the applicant bonafidely filed the revision petition on ( 3 ) basis of legal advice which was received by him. The time spent before the wrong forum, without any malafide intention of the applicant, will have to be excluded in view of section 14 of the Limitation Act. The reasons ascribed by the applicant for the delay are proper and acceptable. Consequently, the delay is condoned. 4. So far as leave to appeal is concerned, it may be noticed that the dismissal of the criminal case is on account of alleged technical delay of the applicant. The learned Magistrate has not decided the matter on merits. Hence, the leave to appeal is granted. 5. As regards merits of the appeal, the learned Magistrate passed order to the effect that the matter was posted for filing of the evidence affidavit by the applicant (complainant). He further noticed that there was no adjournment application filed. On such foundation, the learned Magistrate inferred that the complainant had no interest to proceed with the case. The private complaint case was, therefore, dismissed on 11-11-2008. ( 4 ) 6. The observations of the learned Judicial Magistrate (F.C.) are totally erroneous. The copy of rojnama purports to show that on 19th August, 2008, the applicant (complainant) and the respondent (accused) were present before the trial Court. The plea of the respondent (accused) was recorded vide Exh-15. The private complaint case was posted for hearing on 19th August, 2008. The rojnama purports to show that vide Exh-16, both the parties gave a joint purshis that the private complaint case may be placed before the Lok Nyayalaya for settlement. The Lok Nyayalaya was scheduled on 7th December, 2008. The rojnama further shows that though the next date was given on 11-11-2008, yet, on 27th September, 2008, it was shown to have been taken on Board and was dismissed in default. The applicant has placed on record copy of the cause-list dated 11-11-2008, which shows that the complaint case was enlisted for settlement of the terms of compromise. On that day, it was remarked that the same was already “DID” i.e. dismissed in default. It is manifest that the criminal case was not scheduled for filing of the ( 5 ) evidence affidavit of the applicant (complainant) on the day it was dismissed in default. Obviously, the learned Magistrate could not have inferred that the applicant was disinterested in proceeding with the criminal case. The impugned order shows total non-application of judicial mind. Under the circumstances, the dismissal of the criminal case is quite improper and the appeal deserves to be allowed. 7. In the result, the appeal and the applications are allowed. The impugned order is set aside. The criminal case is restored to its original position and the parties are directed to appear before the learned Judicial Magistrate on 29th November, 2009. The learned Magistrate shall take due care and to proceed with the hearing of the criminal case and not to repeat such arbitrary exercise as reflected in the impugned order. [ V.R. KINGAONKAR ] JUDGE NPJ/criapln2376-2375-09 ( 6 )