1 Cri.Al.300.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 300 OF 2011 Shivaji S/o Narayan Shiralkar Age : , Occu.: Business, R/o Shivaji Chowk, Latur, Ta. Latur, District Latur ...APPLICANT VERSUS Dhansing H. Rathod, Age Major, Occ. Contractor ship R/o Kolegaon Tanda, Tq. Renapur, Dist.: Latur. ...RESPONDENT ... Mr.N.D.Kendre,Advocate holding for Mr.P.G.Mahalankar,Advocate for Applicant. Mr.A.N.Nagargoje,Advocate holding for Mr.D.M.Mane,Advocate for respondent. ... CORAM: U.D.SALVI, J. DATE : 29TH AUGUST, 2011 ORAL JUDGMENT : . Heard. Perused the Appeal and record. 2. The respondent-accused has been acquitted as per section 256 of the Code of Criminal Procedure, in S.T.C.C.2095 of 2007, for the offence punishable under section 138 of the Negotiable 2 Cri.Al.300.11 Instruments Act, by the learned 4th Judicial Magistrate First Class, Latur, on 30th September, 2010. 2. Record and Proceedings before this Court are sufficient for deciding the present appeal. Record reveals that plea of the accused was recorded on 31st August, 2009 and hearing commenced. However, it appears that complainant for one reason or another remained absent and did not file any affidavit-in-chief, consequently, the learned trial Court was constrained to dispose of the case with following observations. “Complainant and his advocate absent. Matter is fixed for hearing since 31.08.2009, i.e. since recording plea. Despite given sufficient time complainant failed to proceed matter. Hence complaint stands dismiss in default for want of prosecution and disposed of accordingly accused acquitted u/s. 256 Cr.P.C. His bail bonds stands cancelled.” 3 Cri.Al.300.11 3. It appears from the application Exhibit 33 moved before the trial Court that applicant was indisposed medically on the date when the impugned order came to be passed. According to the contesting respondent, there was no Medical Certificate in support of the contention that complainant was medically indisposed, therefore, rightly the learned trial Court dismissed the application and proceeded to pass the impugned order. 4. As stated earlier, the impugned order of acquittal is not the result of contest between the parties, which is a clear hallmark of adversarial system of dispensing justice. Opportunity, therefore, needs to be given to the complainant to prosecute his cause, on payment of suitable costs to the other side. As such the following order is passed. :: ORDER :: (i) The impugned order of acquittal dated 30.09.2010, passed by the learned 4 Cri.Al.300.11 trial Court is set aside subject to payment of costs of Rs.1000/-(Rupees One Thousand) to the contesting respondent/accused. Costs shall be deposited in the trial Court within two weeks from today. (ii) The parties shall appear before the learned trial Court on 19.09.2011. (iii) The appellant shall file affidavit in-chief before the trial Court on the date of appearance. (iv) Record and Proceedings be sent back to the trial Court. . The Appeal stands disposed off accordingly. Sd/- [ U.D.SALVI J.] MTK