( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 1758 OF 2009 Shivaji s/o Atmaram Kothule APPLICANT VERSUS Sayed Azim s/o Sayed Sayeed Saheb RESPONDENT ..... Mr. P.N. Kalani, advocate for the applicant/appellant. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 4th August, 2009] PER COURT : 1. Heard. 2. This application and appeal are being decided together in view of clear understanding given to both the sides vide order dated 14th July, 2009. 3. The applicant is original complainant. He filed private complaint case for offence punishable under section 138 of the Negotiable Instruments Act, ( 2 ) vide S.C.C. No. 1176/2005. The complaint case was enlisted for appearance. The learned Chief Judicial Magistrate, Parbhani dismissed the complaint case on 13-03-2008. The Magistrate observed that the complainant had not taken steps since long and, therefore, the complaint was liable to be dismissed in default. The record does not show as to whether the complainant/applicant was negligent and did not take appropriate steps on previous occasion. The impugned order does not show which steps were required to be taken by the applicant. 4. It is trite that normally, the cases should be decided on merits and dismissal in default should not be resorted unless it is inevitable due to conduct of a party. The complainant was present before the Court for the verification of the complaint and process was issued on 03-10-2005. The learned Magistrate has not recorded as to how many times, the applicant/complainant failed to appear and take appropriate steps required to proceed with the complaint. Considering these aspects of the matter, leave to appeal is granted. The ( 3 ) application is accordingly allowed and consequently, the appeal itself is allowed in view of the reasons for dismissal of the complaint on technical ground. 5. In the result, the application as well as the appeal are allowed. The impugned order is set aside. The complaint case (S.C.C. No. 1176/2005) be restored to its original position. The parties are directed to appear before the learned Chief Judicial Magistrate on 14th September, 2009. The learned Chief Judicial Magistrate thereafter shall expeditiously decide the complaint case. [ V.R. KINGAONKAR ] JUDGE NPJ/CRIAPLN1758-09