( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 1977 OF 2007 WITH CRIMINAL APPLICATION NO. 1976 OF 2007 WITH CRIMINAL APPLICATION NO. 1979 OF 2007 IN CRIMINAL APPEAL (STAMP) NO. 407 OF 2007 Maharashtra Pesticide Limited (through its authorized officer/ Director Shri Mahendrakumar Sharma, R/o Aurangabad) having its office at G-2, MIDC Area, Waluj, Aurangabad. APPLICANT VERSUS 1. Renuka Pesticides & Fertilizer, having its office at Gandhi Gani Bidar (State of Karnataka) 2. Shivanand Kaba, Proprietor of Renuka Pesticides and Fertilizer, office at Gandhi Ganj, Bidar (State of Karnataka) RESPONDENTS ..... Mr. Atul Karad, advocate for the applicant in all criminal applications. Mr. B.A. Dhengle, advocate for respondents. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 29th August, 2009] ( 2 ) ORAL JUDGEMENT : 1. By this common judgement, the delay condonation application, application seeking leave to appeal and the appeal itself are being disposed of together in as much as controversy lies in a narrow compass. 2. The appellant filed a private complaint case bearing S.C.C. No. 1648/2005 against the respondents for offence punishable under section 138 of the Negotiable Instruments Act and section 420 of the I.P. Code. The complaint case was scheduled for recording of evidence and the appellant (complainant) on 14th March, 2006. The complaint was filed through authorized officer as the appellant/complainant is a Company registered under the Companies Act. On the date of hearing, an application (Exh-13) was moved by the appellant for adjournment. The adjournment was sought on the ground that the concerned officer had gone out of station and was unavailable. The application for adjournment was rejected by the learned Judicial Magistrate on the ground that the cause shown therein was dis-satisfactory. The complaint was ( 3 ) dismissed under section 256 of the Criminal Procedure Code in the same evening and thus, the respondents came to be acquitted. The complainant (appellant) preferred an application for restoration of the complaint. The restoration application (Mis.Cri.Application No. 264/2006) came to be rejected vide order dated 23-03-2007. The appellant thereafter obtained necessary certified copies of the relevant orders and preferred the present delay condonation application and the appeal. 3. There is delay of 396 days in filing of the appeal. The delay is, however, attributed to the delayed decision of the restoration application by the learned Magistrate. It is worthy to be noted that the appellant filed such application taking support of “Mohd. Azeem v. A. Vankatesh and another” 2003-I-DCLR 88 (S.C.). In the given case, the Apex Court held that where there was non-appearance of the complainant on a single date due to bonafide mistake, the dismissal of such complaint was not proper and the same ought to have ( 4 ) been restored on sufficient cause being shown. 4. There is diversions of opinion as to whether such complaint application could be restored by the criminal Court. It is well settled that the criminal Court has no inherent jurisdiction to order restoration of the private complaint case which is dismissed under section 256 of the Criminal Procedure Code. It is not necessary to elaborately deal with the issue regarding powers of the criminal Court and in so far as restoration of such complaint is concerned. It may be, however, gathered that the appellant was under bonafide impression that such restoration application was maintainable in view of the authority referred to above. Obviously, the appellant was litigating before wrong forum on account of such bonafide impression regarding the legal power available to the learned Judicial Magistrate (F.C.) to order restoration of the complaint. In this view of the matter, the time spent in litigating before the wrong forum, may be excluded in view of section 14 of the Limitation Act, 1963. Therefore, I deem it proper to condone the delay which is found to be ( 5 ) unintentional and is duly explained. The delay condonation application is, therefore, allowed. 5. So far as merits of the appeal are concerned, it is pertinent to note that the appellant explained lateron that the authorized officer was suffering from illness. A copy of the medical certificate was filed. The learned advocate for the respondents (accused) would submit that the cause shown in the adjournment application and the subsequent explanation are inconsistent and, therefore, there is no merit in the stand taken by the appellant. It is true that in the adjournment application (Exh-13), it is shown that the concerned officer had gone out of station and, therefore, the appellant was unable to lead the evidence. Still, however, it cannot be said that there is material inconsistency in the cause shown. Both the causes occurred together. For, the concerned officer might have gone out of the station due to illness and or was unable to return to the headquarters due to illness. 6. It is pertinent to note that the ( 6 ) complainant/appellant was not found to have habitually unattended the matter before the learned Judicial Magistrate. It was the third application filed for the adjournment. The cheque amount is significant one as the alleged dishonoured cheque was for Rs. 14,80,328/-. The learned Judicial Magistrate could have imposed costs while granting the adjournment. It is true that such cases are required to be expeditiously disposed of. It does not, however, mean that they are to be expeditiously disposed of without having regard to sense of justice. The abortive decisions are likely to breed more litigation. In order to avoid such complications, and particularly, which was likely to give rise to further litigation, it would have been better if costs were imposed initially and thereafter, exemplary cost could be imposed and by way of last chance, the adjournment on basis of such exemplary costs could be imposed. The hasty dismissal of the criminal case is explicit from the record. Under these circumstances, I am inclined to hold that the leave to appeal and the appeal itself deserves to be allowed. ( 7 ) 7. In the result, the applications are allowed. The appeal is allowed and the impugned order is set aside. The private complaint case is restored to its original position. The parties are directed to appear before the learned Judicial Magistrate (F.C.) on 5th October, 2009. The appellant (complainant) shall not seek more than three (3) adjournments and that the learned Magistrate may consider such applications only on imposition of costs and the further application, if filed, may be rejected. The complaint case shall be thereafter finally decided on merits. [ V.R. KINGAONKAR ] JUDGE NPJ/criapln1977-07