IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.637 OF 2008 IN CRIMINAL APPEAL NO. OF 2008 Nana Gajanan Patekar )..Applicant Versus The State of Maharashtra & Anr. )..Respondents ---- Mr.Tejas H.Bhatt with Archana Deshpande i/by Amit Date for the applicant. Mr.A.S.Shitole APP for the State. Mr.S.K.Saudagar for respondent no.2. ---- Coram : R.S.Mohite,J Coram : R.S.Mohite,J Coram : R.S.Mohite,J Date : 1st September,2008 PC 1. Heard both sides. Both the parties agree that if leave is granted, appeal may be disposed off finally. In my view, there is a substance in the application. Hence, leave granted and the appeal is taken up for hearing forthwith. Office is directed to number the appeal in due course. Appeal however, is being disposed off today om merits. 2. It is seen that the impugned order is an order dated 9.1.2008 passed in C.C.No.225/S/2003 by the learned Judge presided over Court room no.44 at Andheri. According to the complainant there were two cases between the same parties which appeared on : 2 : 14.12.2007. C.C.No.778/S/2002 appeared at serial no.27 and C.C.No.225/S/2003 appeared at serial no.37. His Advocate attended the first matter and obtained exemption. Thereafter he left the Court to attend the nature’s call and was hopeful to return back before the next matter was called out. The first matter was adjourned to 11.1.2008. When he returned back, he found that the second matter was already called out. Interpreter informed him that second matter too was adjourned to 11.1.2008. On 11.1.2008 however, when his junior went to check the situation, she found that C.C.No.778/S/2002 was on board and it was discovered that the second matter was dismissed under Section 256 of Cr.P.C. on 9.1.2008. 3. No reply as such was filed in the application for leave to appeal and this position remained uncontroverted. From the roznama, I find that earlier the Advocate for the complainant filing an application for exemption and orders have been passed by the Magistrate granting exemption. It is well settled that the party should not suffer because of the difficulty faced by the Advocate. In the circumstances, I am inclined to allow the appeal subject to payment of cost. Appeal is therefore, allowed. The impugned judgment and order passed on 9.1.2008 in C.C.No.225/S/2003 by the 44th Metropolitan Magistrate Court, Andheri is quashed : 3 : and set aside subject to payment of cost of Rs.10,000/- which would be paid to the respondent no.2 within a period of two weeks from today. Advocate for the respondent no.2 states that he is willing to accept the amount on behalf of his client. Handing over the cheque towards cost to the Advocate for respondent no.2 will be valid discharge from the obligation created by this order. The matter shall appear on board before the concerned Metropolitan Magistrate Court on 20.10.2008. Application and Appeal stand disposed off. (R.S.Mohite,J) (R.S.Mohite,J) (R.S.Mohite,J)