Judgment The applicant had filed a complaint against respondent No.1 alleging commission of an offence punishable under Section 138 of the Negotiable Instruments Act. The case was pending for some time, but no evidence was recorded. On 21.03.2011, which was a date of hearing of the said case, the appellant i. e. original complainant remained absent before the Magistrate. The case had already been kept for order of 'dismissal in default', as the appellant had failed to remain present before the Magistrate on the previous date also. In these circumstances, the learned Magistrate ordered acquittal of respondent No.1. 2. The appellant, being aggrieved by the said order of acquittal, has filed present appeal. Though, the learned Magistrate has not referred to the provisions of section 256 of the Code of Criminal Procedure, there would be no doubt that the impugned order can be passed under the said provision. 3. It is, however, a fact that acquittal under the provisions of section 256 of the Code of Criminal Procedure, cannot be said to be a decision of the Court on merits of the case. It is an acquittal, which follows in case of non-appearance of the complainant on a given date. 4. Mr. Adgaonkar, the learned counsel for respondent No. 1 submits that the appellant had been negligent throughout the proceedings before the Magistrate, and therefore, the impugned order being proper and legal, need not be interfered with. 5. In my opinion, keeping in mind that ordinarily the matters that are brought before the Courts of law, are required to be decided on merits, a sympathetic view of the matter should be taken. The absence of the appellant on the given date does not seem to be wilful or deliberate. Respondent No. 1 shall not suffer any prejudice, if the appeal is allowed, provided he is suitably compensated, by awarding costs. If the impugned order is not interfered with, the appellant will be prevented from establishing his case on merits. In my opinion, such course is not desirable and the appellant needs to be given one more opportunity to prosecute respondent No.1 before the Magistrate. 6. In view of the aforesaid observations, the appeal is disposed of as follows: 7. On the appellant undertaking to deposit a sum of Rs. 2000/-in the Court of Magistrate as costs, within a period of four weeks from today, the appeal is allowed. 8. 6. In view of the aforesaid observations, the appeal is disposed of as follows: 7. On the appellant undertaking to deposit a sum of Rs. 2000/-in the Court of Magistrate as costs, within a period of four weeks from today, the appeal is allowed. 8. The impugned order is set aside. 9. The Proceedings before the learned Magistrate are revived. The learned Magistrate shall proceed further with the case, in accordance with law. 10. In the event of the appellant depositing the amount of Rs.2000/-, an amount of Rs. 1500/-therefrom shall be given to respondent No.1 as and by way of costs, and the remaining amount be credited to the State Treasury. 11. Should the appellant fail to deposit the amount of Rs.2000/-, as directed, the learned Magistrate shall forthwith report the matter to this Court, for further directions. 12. The appeal stands disposed of accordingly.