1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO. 2894/2009 Buldhana Urban Coop. Credit Society Ltd., Buldhana Branch Jalna. Applicant. V E R S U S M/s Durga Traders Through its Proprietor and others. Respondents. Shri P.F. Patni, Advocate for the applicant. Shri A.V.Gondhalekar, Advocate for the respondent. CORAM : V.R. KINGAONKAR, J DATE : 12TH OCTOBER, 2009. PER COURT :- 1. These are the applications for condonation of delay and leave to appeal. 2- The applicant is the original complainant. The complaint bearing STC No.3088/2005 was filed for offence punishable under section 138 of the Negotiable Instruments Act. The applicant was absent on the date of hearing i.e on 22.02.2008 and therefore the 2 complaint was dismissed in default. The applicant preferred application for restoration of the complaint on the same day. The Ld. Magistrate allowed the application and restored the criminal complaint. The respondent filed criminal revision application No.107/2008. By order dated 20.11.2008, the Ld. Sessions Judge, Jalna was pleased to dismiss the revision application. The respondent-accused preferred criminal writ petition No.413/2009. Writ Petition was allowed on 03.08.2009 by this Court. This Court held that criminal court had no jurisdiction to recall its order and therefore the restoration of the criminal complaint case was illegal. 3- The applicant (complainant) submits that period consumed during pendency of the criminal revision application No.107/2008 and Criminal Writ Petition No.413/2009 was bonafidely spend. It is due to such reason that there is delay in filing of the appeal against the order of acquittal rendered by the Ld. Magistrate on account of dismissal of the complaint. 4- Heard the learned Advocate Mr. Patni h/f Mr. Kasliwal. 5- The explanation given by the applicant (complainant) has 3 remained uncontroverted. As stated before, the respondent did not appear through served. I deem it proper to accept the explanation and condone the delay. Delay is therefore condoned. 6- Since the criminal case was dismissed in default, it is clear that acquittal under section 256 Cr.P.C is rendered on technical ground. Hence leave to appeal is granted. 7- Appeal is admitted. It is taken up for hearing immediately. 8- Having heard the learned counsel for the applicant (appellant) I find that, the absence of the applicant on the date of hearing i.e 22.02.2008 was not intentional as such. The Ld. Sessions Judge simply observed that matter was old one and applicant (complainant) was absent when repeatedly was called. It is worthy to be noticed that, the Ld. Magistrate did not give any findings that the applicant had purpose fully remained absent on the earlier date. It is not shown that he was habitual in remaining absent and was adopting delay in tactics. The Ld. Magistrate could have imposed costs. The acquittal is rendered on technical ground. It appears that his application for restoration of the criminal case was immediately allowed 4 on the same day on the condition that he shall lead evidence on that day itself. Mr. Patni would submit that the applicant in fact filed affidavit in support of the criminal complaint on the same day and that the cross examination was also likely to be faced if the time would have permitted. Once, it is found that on the date of hearing, the appellant (complainant) was ready to lead evidence, it cannot be said that he wanted to protract the criminal case. In this view of the matter, I deem it proper to allow the appeal and set aside the impugned order of dismissal of the complaint. 9- In the result, the appeal is allowed and impugned order of dismissal under section 256 of the Cr.P.C and acquittal of the respondents is set aside. The criminal complaint case is restored to its original state. ( V. R. KINGAONKAR , J. ) ..... aaa/2894.09