1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.374 OF 2009 WITH CRIMINAL APPLICATION NO.1081 OF 2009. Parag Shetkari Kendra ... Appellant. Versus Sk.Sharif S/o Sk.Ahmed ... Respondent. ... Mr.L.B.Pallod, advocate for the appellant. Mr.B.R. Sontakke, advocate for the Respondent. ... CORAM : V.R.KINGAONKAR,J. Date : 26.08.2009. PER COURT 1. Heard. 2. The appellant challenges acquittal order rendered by the learned Judicial Magistrate (F.C.), Jalna, in a private complaint case bearing STC No.210/2007, for offence U/s 138 of 2 the Negotiable Instruments Act. 3. Considering the fact that the dismissal was in default, leave to appeal is granted. C.A. allowed. 4. So far as merits of the appeal are concerned, it transpires from the record that the private complaint case was scheduled for hearing on 6.1.2009. The warrant was issued against the Respondent-accused due to his failure to appear. The next date was on 13.2.2009. The Respondent- accused, in the meanwhile, attended the Court on 3.2.2009 and sought cancellation of the warrant. The warrant was cancelled. Needless to say, 13.2.2009 was not scheduled for effective hearing but was the date fixed for appearance for the Respondent-accused. However, after cancellation of the warrant, the appellant sought time on 13.2.2009 to file affidavit in lieu of the evidence. The time was granted and the case was fixed on 21.2.2009. The complainant/appellant filed adjournment application vide Exh.31 for adjournment on certain grounds stating that due 3 to unavoidable circumstances, the evidence could not be led. The learned Magistrate dismissed the complaint in default. The complainant/appellant filed another application on the same day vide Exh.32 and sought restoration of the complaint. That application also came to be rejected. 5. Having heard learned counsel for the parties and on going through the impugned order, it is amply clear that there was no habitual absentia of the complainant and only on two occasions he had sought adjournment to file affidavit in lieu of the oral evidence. Thus, the delay could not be attributed only to the appellant. The appellant was entitled to seek proper opportunity for leading evidence. Though the case was old one, the learned Magistrate should have ensured that necessary opportunity is given to the appellant. The impugned order reveals that too technical view is taken by the learned Magistrate. The learned Magistrate could have imposed costs on the appellant/complainant. 6. For the foregoing reasons, in the 4 interest of justice, the impugned order is liable to be interfered with. Hence, the appeal is allowed subject to payment of Rs.1,000/- (Rupees one thousand) towards costs to the Respondent. If the costs are deposited in the trial Court within two (2) weeks, then the Criminal complaint case be deemed as restored and the impugned order be deemed as set aside. The appellant shall not seek more than three (3) adjournments and the complaint case be proceeded expeditiously. The parties to cooperate with the trial Court for early disposal of the Criminal complaint case. The parties are directed to appear before the learned Magistrate on 14.9.2009. (V.R.KINGAONKAR,J.) asp/office/Crappeal37409