1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.614 OF 2008. WITH CRIMINAL APPLICATION NO.615 OF 2009. IN CRIMINAL APPEAL ST.NO.114 OF 2008. Rajendra S/o Jambukumar Gandhi ... Applicant. Versus Rakesh S/o Lalchand Khandelwal ... Respondent. ... Mr.S.S.Deshmukh, advocate for the applicant. Mr.Milind Joshi, advocate for the Respondent. ... CORAM : V.R.KINGAONKAR,J. Date : 10.09.2009. PER COURT 1. The application for condonation of delay, leave to appeal and the appeal are being decided together. 2 2. The appellant is original complainant. He filed a private complaint case bearing SCC No. 766/2003, for offence U/s 138 of the N.I.Act, in the Court of Chief Judicial Magistrate, Ahmednagar. The Criminal case was made over to the Judicial Magistrate. The appellant was found absent and, therefore, the complaint came to be dismissed in default and thereby the acquittal of the Respondent U/s 256 of the Cr.P.C. has been ordered. 3. The delay in filing of the appeal is duly explained in para 10 of the application. It appears that the advocate of the applicant was also absent and, therefore, immediately the applicant could not get information about dismissal of the complaint. The delay appears to be unintentional. Hence, the delay is condoned. 4. Let it be noted that the private complaint case was instituted by the applicant on 4.3.2003. The learned Judicial Magistrate issued process on the very same day after recording verified statement of the applicant 3 (complainant). The respondent (accused) appeared before the trial Court on 4.8.2007. He was released on bail and the complaint case was posted for next stage on 7.8.2007. On the next day i.e. on 7.8.2007, the applicant sought time. The adjournment was granted and the complaint case was posted for further hearing on 24.8.2007. The learned Magistrate noticed that affidavit in lieu of evidence was not filed and, therefore, he posted the matter on 11.9.2009 for further orders. On that day, the applicant and his advocate were found absent when the complaint case was called out. So, the learned Magistrate dismissed the complaint in default. 5. It is amply clear that the learned Judicial Magistrate hastily acted while dismissing the complaint when the dates of effective hearing were probably not within the knowledge of the complainant (applicant). He was found absent only on two dates and the complaint case was not old one. The learned Judicial Magistrate should have noticed that other old cases could be given priority. The disposal of 4 the cases in default may not be meet the ends of justice. The trial Court should not dismiss such complaint cases only it is brought to the notice of the trial Court that the complainant is habitual default and is disinterested in prosecuting the case. Normally, when the Court is satisfied that the complainant has lost interest or is trying to protract such complaint cases by remaining absent then the complaint case may be dismissed in default. The learned Judicial Magistrate should have waited further and it would have been better to pass order informing the complainant that in case the evidence was not adduced, then the complaint was liable to be dismissed. It also does not appear from the copy of Roznama that the complainant failed to take appropriate steps on the earlier dates. It appears, in fact, that the Respondent (accused) could not be served for a long period and ultimately on 8.4.2005, the Judicial Magistrate directed issuance of non-bailable warrant against the Respondent. The Respondent appeared on 4.8.2007 and applied for cancellation of the non-bailable warrant vide Exh.13. The 5 learned Judicial Magistrate granted the request and cancelled the NBW. Thus, it can not be said that the appellant was disinterested in prosecuting the private complaint case. 6. In view of the foregoing discussion, I am inclined to hold that this is a fit case in which leave to appeal will have to be granted. Secondly, the impugned order appears to be arbitrary in the circumstances. Consequently, the appeal is allowed. The impugned order is quashed. The private complaint case bearing SCC No.766/2003 be restored to the file of the Chief Judicial Magistrate, Ahmednagar. The parties are directed to appear before the learned Judicial Magistrate, Ahmednagar on 12.10.2009. (V.R.KINGAONKAR,J.) asp/office/Crapp61408