cran274.10 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 274 OF 2010 Suresh Raghunath Patil ...Applicant Versus Sardarsingh Ratansingh Girase ...Respondent ..... Mr. V.B. Anjanwatikar, advocate for the applicant Mr. S.I. Nandode. Advocate for respondent ..... CORAM: S. S. SHINDE, J. DATED: 17TH JANUARY, 2011 PER COURT:- 1 Heard. This application is filed with a prayer to grant leave to entertain this application under Section 378(4) of Cr.P.C. for challenging the judgment and order dated 22.7.2009 passed by the learned J.M.F.C. Dhule in S.T.C. No. 1785 of 2007 for the offence punishable under Section 138 of Negotiable Instruments Act. 2 Upon hearing counsel for the parties, I am inclined to grant leave to prefer appeal. Office to register the appeal. 3 With consent of the parties, appeal is taken up for hearing. cran274.10 -2- 4 Upon careful perusal of the impugned judgment and order passed by learned J.M.F.C. Dhule, it appears that the matter was fixed for filing evidence and affidavit of the complainant. The complainant remained absent on the date, which was fixed by the court. Hence the Court by observing that on two occasions, when the dates were fixed for filing evidence, the complainant was not present has dismissed the case and acquitted the respondent herein. 5 Counsel appearing for the respondent vehemently opposed this appeal and submitted that the Court below has taken into consideration the absence of complainant on two occasions and has passed appropriate order. He therefore, submits that this court may not interfere in the impugned judgment and order. 6 In the circumstances, I am of the opinion that the courts should decide the matters on merits and not by taking hyper technical view. It was open for the said court to impose some costs on the complainant and then proceed with the matter. Therefore, in my opinion, this is fit case wherein the impugned order is required to be set aside and to restore the complaint at its original stage where it was fixed for recording evidence of the complainant. Therefore, the impugned order dated 22.7.2009 is set aside. However, on the dates, which were fixed cran274.10 -3- by the Court below for filing evidence/affidavit of the complainant, the complainant did not remain present and therefore, in the facts of this case, it would be appropriate to impose costs of Rs.10,000/- on the applicant. 7 In the result, this appeal is partly allowed subject to condition of depositing an amount of Rs.10,000/- in the court of learned J.M.F.C. Dhule within two weeks from date of receipt of this order by the said court. Needless to mention that unless the said amount is deposited, the concerned court shall not proceed further with the matter. Out of amount of Rs.10,000/- deposited by the applicant, half of the amount i.e. Rs.5000/- to be paid to the respondent within one week thereafter and remaining amount of Rs.5000/- be deposited in the office expenses account of the said court. ( S. S. SHINDE. J.) rlj/