JUDGMENT - Lodha R.M., J.:—Heard the learned Counsel for the parties on the application for condonation of delay in filing the appeal on 31-8-1994 against the order of acquittal dated 21-9-1991 passed by the Chief Judicial Magistrate, Nagpur, in Criminal Complaint No. 518/1990. Mr. V. V. Bhangde, the learned Counsel for the applicant, submits that the applicant filed the Criminal Compliant No. 518 of 1990 under section 138 of negotiable Instruments Act, 1881 against the respondent No. 1 on 20-2-1990 and in the said complaint summons were served on the accused. When the case was fixed for 21-9-1991 and at the time it was called, the applicant had gone to inform his Counsel but the Chief Judicial Magistrate, Nagpur, in the absence of the complaint/applicant and his Counsel dismissed the complaint since neither of them were present at the time the case was called. Mr. Bhangde further submits that on that very day the complainant moved an application for restoration of the complaint which was allowed by the Chief Judicial Magistrate, Nagpur, on that very day and the proceedings in the complaint continued and the accused/non-applicant No. 1 participated in the proceedings. According to Mr. Bhangde, on 19-6-1992 the accused/non-applicant No. 1 moved an application before the trial Court that the complaint which was dismissed on 21-9-1991 by the Court for want of prosecution could not have been restored and the further proceedings are non est and, therefore, the proceedings should be dropped. That application which was filed by the non-applicant-accused No. 1 on 19-6-1992 was contested by the application on various grounds and the trial Court rejected the said application filed by the non-applicant No. 1/accused on 21-7-1992. Mr. Bhangde further submits that aggrieved by the order dated 21-7-1992, the accused/non-applicant No. 1 herein filed criminal revision before the 3rd Additional Sessions Judge, Nagpur, on 26-8-1992 and the said criminal revision application was allowed by the 3rd Additional Sessions Judge, Nagpur on 23-6-1994 and at that time it occurred to the complainant that he ought to have filed an appeal against the order of acquittal dated 21-9-1991 and according to Mr. Bhangde, thereafter the present appeal has been filed on 31-8-1994. The learned Counsel for the applicant thus submits that the applicant was prosecuting his remedy in good faith and bona fide and therefore, delay in filing the present appeal against the order of acquittal should be condoned and appeal should be heard on merits.

2. Opposing the submissions made by Mr. Bhangde, on the other hand, the learned Senior Counsel appearing on behalf of the non-applicant No. 1/accused submitted that despite the settled position of law, the complainant contested the application filed by the accused on 19-6-1992 on untenable grounds and, therefore, it cannot be said that the complainant was prosecuting the remedies in good faith. Mr. Sen, the learned Senior Counsel for the non-applicant No. 1 submits that the complainant did not act in good faith and only to harass the accused/non-applicant No. 1, this appeal against the order of acquittal has been filed almost after 33 months. Mr. Sen, the learned senior Counsel also contented that the cause shown by the applicant is not sufficient cause, and, therefore, the application deserves to be dismissed. In support of his contention, the learned senior Counsel relied upon the decision of the Apex Court in (Ravindra Nath v. Sivakami)1, A.I.R. 1972 S.C. 730. The learned Senior Counsel appearing on behalf of the non-applicant No. 1 also brought to my notice that the complainant has already filed civil suit for recovery of the disputed amount in the year 1992 and the said civil suit is registered as Special Civil Suit No. 268/1992 and the same is pending in the Court of 3rd Jt. Civil Judge, Senior Division, Nagpur, and the next date fixed in the matter is 14-9-1995.

3. The facts are not in dispute. It is an admitted case that th

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