1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO. 601 OF 2009 Jitendrakumar Tilokchand Kothari, age 41 yrs, Occ. Business, R/o Saraf Bazar, Ner Ganesh Temple, Amalner, Tq. Amalner, Dist. Jalgaon. Applicant. (Orig. complainant.) V E R S U S Jivandeep Selection Cloth Store, Chopda Through its Proprietor, Kailas Sonalal Jain, age 46 yrs, Occ. Business, R/o Chopda, Tq. Chopda, Dist. Jalgaon. Respondents. (orig. accused.) Shri Girish Rane, Advocate for the applicant. Shri M.M.Bhokarikar Advocate for the respondent. CORAM : V .R. KINGAONKAR, J. DATE : 7TH AUGUST, 2009. PER COURT :- 1. Rule. Rule made returnable forthwith and heard finally. 2- The application seeking leave to appeal and appeal are heard together and being decided simultaneously. The private complaint case 2 instituted by the appellant for the offence under section 138 of the Negotiable Instruments Act bearing Summary Criminal Case No.511/2005 came to be dismissed in default on 20.01.2009. Resultantly, the respondent came to be acquitted in view of section 256 of the Code of Criminal Procedure. 3- Heard learned counsel for the parties. 4- In view of the fact that dismissal of the complaint is in default, leave to appeal is granted. So far as merits of the appeal are concerned, it is worthy to be noticed that the private complaint case was not scheduled for effective hearing on 20.01.2009 when it was dismissed in default. The learned Magistrate observed that the complainant was absent since long. He further observed that no steps were taken since last two years before dismissal and therefore he inferred that the appellant was not interested in proceeding with the trial of the private complaint case. In order to verify the fact situation, the appellant was directed to place on record copy of the roznama of the private complaint case (SCC No.511/2005). On perusal of the roznama, it is amply clear that several times respondent was found absent after service of summons. From time to time, the appellant was required to file applications for issuance of warrant. Appellant filed application for issuance of warrant. Bailable warrant was then issued. There after, on application filled by the respondent it was cancelled. It appears that the respondent attempted to remain absent from 12 th April, 2005 onwards and there after again application (Exh.41) was filed for issuance of the warrant. The appellant also filed application for issuance of Non Bailable Warrant and notice to the sureties of the respondent. In the face of such record, the observations of the learned 3 Magistrate that no steps were being taken since last two years before dismissal of the complaint are factually incorrect. It appears therefore that the appellant was diligent enough to secure presence of the respondent for the purpose of trial. The inference drawn by the learned Magistrate that the appellant was not interested in proceeding further with the criminal case is apparently without foundation. The appellant submits that due to illness he was unable to attend on that day. He filed copy of medical certificate in this behalf. 5- Normally, endeavour of the Court should be to decide the cases on merits. Seldom, the power of dismissal in default may be exercised when adequate reasons can be ascribed to infer considerable apathy of a party and sheer negligence in proceeding with the trial. In the present case, the impugned order of dismissal is rather without application of judicial mind, in view of factual inaccuracy as mentioned above. Consequently, the impugned order of dismissal is unsustainable. 6- In the result, the appeal is allowed. 7- The impugned order of dismissal is set aside. The Criminal Complaint proceedings shall be restored to its original position. The parties are directed to appear before the learned Magistrate on 7 th of September, 2009. ( V. R. KINGAONKAR , J. ) ..... aaa/601.09