1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINALL APPLICATION NO.1644 OF 2009 WITH CRIMINAL APPLICATION NO.1643 OF 2009. IN CRIMINAL APPEAL ST.NO. OF 2009. Dr.Babasaheb Ambedkar Nagri Sahakari Bank, Branch Pundliknagar, Aurangabad through it's Recovery Officer Mr.Gautam S/o Vitthalrao Telang. ... Applicant. Versus The State of Maharashtra and another ... Respondents. ... Mr.V.B.Garud, advocate for the applicant. Mrs.A.V.Gondhalekar, A.P.P. for the State. Mr.M.K.Deshpande, advocate for the Respondent No. 2. ... CORAM : V.R.KINGAONKAR,J. Date : 16.09.2009. PER COURT 1. The applications along with the appeal 2 are being disposed of together inasmuch as short point involved in the present appeal would not detain this Court from finally deciding the matter in view of the controversy involved therein. 2. There is delay of 205 days in filing of the Criminal Appeal. The complaint filed by the appellant was dismissed in default and the Respondent was acquitted U/s 256 of the Cr.P.C. for offence U/s 138 of the N.I.Act. The same order of dismissal dated 18.7.2008, rendered by the learned Judicial Magistrate (F.C.) was challenged by the appellant (applicant) by filing Criminal Revision Application No.264/2008. By order dated 3l.3.2009, the Criminal Revision Application came to be dismissed on the ground that it was not maintainable in view of availability of appellate remedy against the order of acquittal. The applicant obtained certified copy of the said judgment and thereafter preferred the appeal. 3. Having heard learned counsel for the 3 parties and on going through the impugned judgment, it is amply clear that the applicant spent time in litigating before wrong forum by filing Revision Application. The time spent before the Court of Sessions and the time consumed in obtaining certified copies may be considered for the purpose of condonation of delay. It appears that the delay is unintentional. The wrong advise received by the applicant was the reason why instead of filing Criminal Appeal, the Criminal Revision Application was preferred before the Court of Sessions. Hence, the explanation submitted by the applicant is acceptable and does provide "sufficient cause" for the purpose of delay condonation. Consequently, the delay is condoned. 4. Leave granted having regard to the fact that the complaint came to be dismissed in default and no merits have been considered by the Judicial Magistrate. 5. As regards the merits of the present appeal, it may be gathered that in the context of 4 Criminal complaint bearing SCC No.3318/2005, the complainant had filed affidavit in support of the complaint. It appears that the cross-examination of the complainant's witness No.1 was to be taken. The case was adjourned from time to time. On 16.6.2008, the learned Judicial Magistrate noticed that the complainant and his advocate were present. The Court was busy in another Civil matter and, therefore, the case was adjourned for cross-examination of P.W.1 to 26.6.2008. The Roznama dated 26.6.2008 reveals that the complainant and the advocate were not present when called. So also the accused and his advocate were absent. The Court adjourned the matter to 18.7.2008 for cross-examination of P.W. 1. The word "not" as is shown in the Roznama dated 26.6.2008 after the words complainant and advocate seems to have been added subsequently. For, in relation to the accused and his advocate clearly it is stated that they were found absent. Mr.Deshpande, would point out that the accused and his advocate were present on 17.3.2008 and all other earlier dates but the C.W.1 was absent. Be that may as it is, it does not appear that the 5 complainant's witness was purposefully absent. For, on earlier dates he was found present. It does not appear that the complainant committed habitual defaults. Considering these aspects of the matter, the learned Judicial Magistrate could have suo-motu granted one final chance or should have imposed costs as a first measure. 6. It is well settled that the endeavour of the Court should be to decide the matters on merits and not due to the defaults. Hence, I am of the opinion that the impugned order will have to be interfered with. Consequently, the appeal is allowed subject to costs of Rs.2,000/- (Rupees two thousand) which shall be paid or deposited within three (3) weeks and will be the condition precedent. The amount of costs shall be paid to the advocate of the Respondent No.2 or shall be deposited in the trial Court within the above period. Thereafter, the impugned order may be deemed as set aside. The Criminal complaint is restored to its original position. 7. The parties are directed to appear 6 before the trial Court on 6.11.2009. (V.R.KINGAONKAR,J.) asp/office/Crapp164409