1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION APPA NO. 679 OF 2010 ( Mahalaxmi Stone Crusher Vs. Madhav Structural Engineering Ltd. & 4 Ors.) ........................................................................................................................................................................ Office Notes, Office Memoranda of Coram, appearances, Court orders or directions Court's or Judge's Order and Registrar's orders ........................................................................................................................................................................ Shri A. S. Murty, Adv for applicant. Shri V. R. Mundra Adv for non applicant. CORAM: M. N. GILANI J. DATED: 27th JUNE, 2011. . This is an application for condoning the delay caused in filing application for special leave to file an appeal. The appellant is original complainant in Criminal Case No. 1703 of 2003 on the file of Judicial Magistrate First Class Amravati. It was a case under Section 138 of the Negotiable Instruments Act. Process was issued. It is clarified by the learned counsel for the respondents that accused had put their appearance but there after they remained absent. To secure the attendance the appellant was required to pay process fee. On the particular date i.e. on 25.03.2009 appellant and his counsel were absent. Therefore the Court adjourned the case to 01.04.2009. On 01.04.2009 the appellant and the counsel were absent and therefore the complaint was dismissed and the respondents were acquitted. 2 This order was assailed by the appellant invoking Section 482 of the Criminal Procedure Code in Criminal Application No. 3247 of 2009. This application was withdrawn with liberty to avail of appropriate remedy. Chronology of the event can be stated as under: 1] 01.04.2009 The impugned order was passed by the Magistrate. 2] 30.06.2009 Certified copy of the order was applied for. 3] 04.08.2009 Certified copy was received. 4] 20.08.2009 Application under Section 482 Cr.P.C. was filed. 5] 06.07.2010 Application was withdrawn after seeking permission to withdraw the same and file appropriate proceedings. 6] 31.08.2010 This appeal has been filed. Period of limitation for filing appeal is 90 days. Learned counsel for the respondents submitted that it is not merely a delay of 55 days. Period taken by the appellant in prosecuting the application under Section 482 Criminal Procedure Code cannot be excluded and as such additional delay of about an year cannot be condoned. Filing of the proceedings under Section 482 Criminal Procedure Code cannot be termed as gross negligence, atleast, on the part of the appellant. It is a known fact that litigants have to act as per the advice rendered by their Advocate. Since no evidence was recorded in the case and the accused/respondents were absent on the date when it was dismissed, it was believed that the order of dismissal is assailable in the proceedings under Section 482 of Criminal Procedure Code. At the most it can be said that the 3 provisions of Section 256 Criminal Procedure Code were not read in correct perspective. Thus if the time spent in prosecuting the application under Section 482 Criminal Procedure Code is excluded, delay would be reduced to about 55 days. For that also the reasons are put forth. In this view of the matter, the delay caused in filing the appeal is condoned. Application be listed for hearing on the issue of leave to file an appeal. JUDGE svk