-1- IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO. 325 OF 2006 APPLICATION NO. 325 OF 2006 APPLICATION NO. 325 OF 2006 with criminal appeal no. of 2006 Shri Jayant Bindumadhav Malpathak : Applicant v/s Mr. Deepak Kataria : Respondents M.S. Karnik for applicant Nilesh Patil for respondent no.1 S.R. Shinde APP Coram : R.S. Mohite,J Date:10.7.2008 P.C. . Heard both the sides. Criminal application 325/06 is for leave to appeal against the order of acquittal. The acquittal is not on merits but is for default on part of the complainant in appearing in the trial court. On perusal of the roznama it appears that the complainant and his advocate was present in the court on 1.12.2005. Case was adjourned to 7.12.2005. On 7.12.2005 the complainant and advocate was absent the matter was adjourned to 19.12.2005. On 19.12.2005 also the complainant and his advocate absent and therefore complaint was dismissed. The record further indicates that on earlier occasions the complainant and advocate were attending the case. In my view, since the object of the court is to decide the matter on merits and since the default appears on two dates and for short duration leave ought to be -2- granted. Accordingly leave is granted to file appeal. Office is directed to number the appeal. . I have taken up the appeal also for hearing since it involves same point as contained in the application for leave to appeal. For the same reasons which I mentioned aforesaid the appeal is allowed. The impugned judgment and order dt. 19.12.2005 is quashed and set aside and the case bearing no. 4219/2000 is directed to be decided on merits. However since the complainant has been at fault, it is further directed that the accused will have general exemption to appear in the case until specifically directed to remain present by the trial court. There is further direction that the applicant will pay cost of Rs. 5000/- to the accused, which amount will be paid within a period of 4 weeks from today. Application and appeal disposed of accordingly. (R.S. Mohite, J)