1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1293 OF 2011 Chaudhari Nuroddin s/o Mohammad Idris ... APPLICANT VERSUS The State of Maharashtra & anr. ... RESPONDENTS ..... Shri H.I. Pathan, Advocate for the applicant Shri N.H. Borade, A.P.P. for respondent No.1. Shri V.D. Sapkal, Advocate for respondent No.2. ..... CORAM : U.D. SALVI, J. DATED : 29th September, 2011. PER COURT : 1. Heard. Perused application and the annexures thereto. 2. S.C.C. No.123/2001, lodged by the applicant/ complainant under Sections 352, 504, 506 of the Indian Penal Code, 1860 was lodged against the respondent/ accused No.2 Omprakash s/o Dhondiram Mane, Deputy Superintendent of Police, Reserve Police Training Station, Jalna, then A.S.I., Paranda Police Station, was dismissed for default of the complainant in appearance before the learned Judicial Magistrate, First Class on the given date of hearing on 27.8.2009. It appears that, the 2 applicant/ complainant approached the learned Sessions Judge, Osmanabad with a Revision application preferred against the said order of dismissal of the complaint. Learned Sessions Judge, Osmanabad, dismissed the revision application – Revision Application No.122/2009 on 7.10.2010 on the ground of its maintainability. Thereafter, the applicant/ complainant has approached this Court in an appeal under Section 378 of the Code of Criminal Procedure, 1973 along with the present application for condonation of delay of 513 days in preferring the appeal before this Court. 3. According to the applicant/ complainant, choice of wrong forum in assailing the order of dismissal of his complaint, has resulted in the delay. The applicant/ complainant also pleads in his application that the complainant and his family had applied for Haj pilgrimage which was to start from 26.10.2009 and he and his family were called for collecting the documents in respect of the said tour to Mumbai. This prevented him from appearing before the trial Court on the given date i.e. 27.8.2009. These facts are not controverted by the respondent/ accused Omprakash Mane. Learned Sessions Judge, Osmanabad while delivering the judgment in Criminal Revision Application No.122/2009, also observed that the absence of the revision petitioner (the applicant/ complainant) was for sufficient reason; however, the learned 3 Judicial Magistrate, First Class had dismissed the said complaint and acquitted the accused in light of the order of this Court in Criminal Application No.384/2005. 4. Order dated 14.7.2005 in Criminal Application No. 384/2005 moved before this Court required the Judicial Magistrate to take strict view of the absence of the complainant and perhaps this order weighed heavily in the mind of the learned Judicial Magistrate, First Class coupled with the fact of previous elusive conduct of the applicant/ complainant. 5. All said and done, the fact remains that the choice of wrong forum led to loss of time in preferring the present appeal assailing the order of dismissal of the complaint. According to Mr. Sapkal, learned counsel for the respondent/ accused, the delay has been intentional and deliberate and was designed to harass the respondent/ accused by drawing him from one forum to another. As regards the issue of maintainability of this application, learned Advocate for the respondent/ accused conceded to the ratio of the judgment in M/s Sharmaji Textiles’s case (M/s Sharmaji Textiles Vs. M/s Sandeep Traders & ors. ( 2009 ALL MR (Cri) 771 ), which explains the applicability of Section 5 of the Limitation Act to the leave application under Section 378(4) of the Code of Criminal Procedure Code, 1973. 4 6. Criminal Revision Application No.122/2009 was conducted by learned Advocate Mr. O.M. Morve on behalf of the revision petitioner i.e. the applicant/ complainant. It not only signifies that the applicant/ complainant was under the advise of learned Advocate Mr. O.M. Morve and the wrong choice of forum was a result of such advice. In absence of any specific revelation of the fact to the contrary by the respondent accused Omprakash Mane, by way of reply to the present application, it is very difficult to conclude that the delay which occasioned as a result of wrong choice of forum was either intentional or deliberate. In the interest of justice, the parties need to get justice in the said case on merits. However, looking to the facts and circumstances in the present case as well as socio-economic status of parties, particularly the respondent/ accused, who has to remain busy in public service, hardship sustained on account of condonation of delay of 513 days can be mitigated by payment of costs of Rs.20,000/-. The delay is, therefore, condoned, subject to payment of costs of Rs.20,000/- (Rupees twenty thousand), to be deposited in this Court within a month. Criminal Application No.1293/2011 stands disposed of accordingly. ( U.D. SALVI, J. ) fmp/cri1293.2011