1 appln 4812 of 2009 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4812 OF 2009 The Bombay Dyeing and Manufacturing Co. .. Applicatn. -versus State of Maharashtra .. Respondent. Mr. Rahul Moghe with Mr. Rohit Mahadik, for the Applicant. Mr. Sandeep Dere, for Respondent Nos 2 and 3. Mrs. M.M. Deshmukh, APP for the Respondent State. CORAM: R.C. CHAVAN, J. DATED: 21st July, 2011 P.C. 1. This is an application for leave to file appeal against dismissal of the complaint, for the offence punishable under Section 138 of the Negotiable Instrument Act, for failure of the complainant to remain present before the Court and to take steps. Complaint was dismissed on 24th September, 2009. Before that after issuance of process accused had appeared and filed an application for discharge which has been rejected by the learned Magistrate. There are several cases about dishonour of cheques against the respondents and in one of the such cases, matter was brought to this Court by filing writ petition. Ultimately petition got dismissed. Learned Magistrate, therefore, ordered fresh notices because of the lapse of time. Learned Counsel for the 2 appln 4812 of 2009 applicant points out that out of about 20 dates on which matter before learned Magistrate was adjourned, on 7 occasions the Court was vacant and on 11 occasions, applicant had remained present. Even so the matter was dismissed for non appearance of applicant and for failure to take steps. Learned counsel for the applicant also points out that the earlier roznama of the proceeding shows that in fact process was issued and report was awaited. Even so the applicant should have taken steps to serve respondents. Learned counsel for the applicant states that the difficulty of his client was that unless process was served, he could not have taken steps for issuing bailable warrant. Even so it was for the applicant to pursue the matter at least by remaining present before the Court, explaining to the Court the circumstances due to which case was dragging. There is nothing to show that the steps were to be taken by the applicant for issuance of summons to accused and the observations made by the learned Magistrate are incorrect. It could not be said that learned Magistrate was totally unjustified in dismissing complaint. However, since it is always desirable that to have the lis decided on merits rather than dismissing it in this fashion. Leave ought to be granted. 2. Though learned counsel for the respondent has strong objection, leave granted. 3. By consent appeal is taken up for final hearing, 3 appln 4812 of 2009 since Record and Proceeding is not required as the order impugned is about dismissal of complaint. Considering that it would be always desirable to have lis decided on its merits rather than dismissing it on technical grounds, the appeal is allowed. The impugned order dated 24th September, 2009, is set aside subject to appellant paying costs quantified at Rs. 10,000/- to respondent Nos 2 and 3, since they had been needlessly required to appear in this Court for lapse on the part of applicant. If the costs are deposited with the learned trial Magistrate, within a period of two weeks, he may allow respondent Nos 2 and 3 to withdraw the same. Learned Magistrate shall then proceed further in the hearing of the matter. (R. C. CHAVAN, J.)