1 A IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1987 OF 2007 IN CRIMINAL APPEAL NO. OF 2007 Lexicom Finance Ltd. .. Applicants V/s. Vitara Chemicals Ltd.& Anr. ..Respondents Mr.V.S.Kapse for the Applicants. Mrs.Manjula Rao with Mr.Anoop Pande and Smt.Pranaya Chavan for the Responents. CORAM : A.R.JOSHI, J. DATED : JUNE 9TH,2009. P.C. Heard rival submissions for some time on the present application for leave to file an appeal against the acquittal of both the Respondents in the matter of offence punishable under section 138 of Negotiable Instruments Act. 2 2. It is the leave petition of the year 2002 and kept before this Court for final arguments. Perused the R & P of the matter and specifically the Roznama of the Trial Court. 3. It is a matter of dishonour of cheque of Rs.5 lakhs and odd and the original complaint was filed before the Metropolitan Magistrate Court in the year 1999. It is also a factual position that on one occasion the matter was transferred from one court to another court. It is also a factual position and transpired from the Roznama on two occasions. From the Roznama on many occasions complainant-representative of the complainant company remained absent, though the affidavit in lieu of examination in chief were filed. Initially affidavit was filed by one representative of the company and subsequently said representative was substituted on the ground of his tendering resignation to the company and affidavit of another representative came to be filed. It appears that on various said dates the representative, who filed affidavit and who was required to be cross examined on behalf of the accused, remained absent and on some occasions on medical 3 grounds. It is also perused by this Court that various exemption applications were preferred and were allowed by the trial Magistrate. It is also observed that on various dates the Court was vacant as on leave and on various occasions in fact both the parties and their advocates were absent. In fact it is a very precarious situation of the matters which are to be taken up early, at least considering import of the provisions of N.I.Act and considering the offence punishable under section 138 of the said act however, due to various practical reasons and mainly due to absence of parties, their Advocates and at times out of substitution of the complainant, there happen to be delay in deciding such type of matters. It must be said that this Court cannot ignore such type of situation and an allowance is required to be given when such situation occurs. Of course, it must be seen in specific cases that such allowance should not be dragged to such a latitude to have the effect of injustice, on any party. 4. It is a factual position that in the present matter at hand for almost 10 dates the matter could not be taken for cross examination 4 of the representative of the complainant company and out of such dates on one occasion the matter could not be taken up by the trial magistrate due to other work and on almost all other dates except the last date of the impugned order, exemption application preferred on behalf of the complainant were granted. Ultimately, on 1st April, 2007, the matter came to be dismissed in default as per the provisions of section 256 of Cr.P.C. and both the accused were acquitted. This is the order which is challenged. 5. Present leave petition is strongly objected by the learned Advocate Mrs.Manjula Rao on behalf of the Respondents original accused, by pointing out the authority of this Court (unreported) in criminal application No.4430 of 2006. 6. Apart from the above, much reliance was placed on the ratio propounded by the authority of the Hon’ble Apex Court in A.I.R. 2008 Supreme Court 2066 S.Ramkrishna V/s. Rami Reddy and ors. It is strongly submitted that though it is the 5 dismissal of the complaint as per the provisions of section 256 of Cr.P.C., the scope available to this appellate court is limited and as carved out by the provisions of section 378(4) of Cr.P.C. On carefully going through the facts as mentioned in the authority of the Hon’ble Apex Court and on scrutinizing the factual position in the present matter at hand, in the opinion of this Court while considering the merits of the provisions of speedy trial and dealing with the cases of bouncing of cheques, it would be in the fitness of the situation to give an opportunity to the complainant to get his case decided on merits. In order to see that there should not be any further delay and protraction of the proceeding, a time bound programme can be given and in the result by the present order the leave petition and also consequently the appeal are being disposed of. Hence, order : :: O R D E R :: i. Leave petition is allowed. ii. Appeal is admitted and is also disposed of by giving directions 6 that the matter shall be decided by the learned Trial Metropolitan Magistrate Court within six months after receipt of the R & P. iii. Needless to mention that the learned trial Magistrate shall dispose of the matter on merits after giving reasonable opportunity to both the parties. iv. Certified copy is expedited. v. On receipt of the R & P by the learned trial Metropolitan Magistrate Court, presence of both the parties shall be secured by the Court by issuing the appropriate notices. (A.R. JOSHI, J.)