ORDER 1. In this appeal, the appellant/complainant has assailed the order dated 11.1.2012 passed in Criminal Complaint Case No.2550/2007 on dated 11.1.2012 by learned Judicial Magistrate 1st Class, Khandwa whereby the complaint filed by the complainant was dismissed for want of prosecution and the respondent/accused was acquitted from the charge of offence punishable under section 138 of Negotiable Instruments Act. 2. To appreciate the say of the appellant/complainant, the basic case put forth before the trial Court in nutshell is that the appellant gave a loan of Rs.2,50,000/- to the respondent. For returning the aforesaid amount, the respondent gave a Cheque No.00816 of Bank of India dated 26.5.2007 of Rs.2,50,000/- to the appellant. When the cheque was presented by the appellant for encashment, the same has been returned by the Bank with the remark “exceed arrangement” on 31.5.2007. After compliance of due procedure criminal complaint case under section 138 of Negotiable Instruments Act was filed by the appellant. 3. After adopting due process criminal complaint case was registered against the respondent and in compliance of notice he appeared before learned trial Court. 4. Learned trial Court vide impugned order dated 10.1.2012 has dismissed the aforesaid complaint case for want of prosecution and acquitted the respondent from aforesaid charge, hence aggrieved thereby this appeal has been preferred by the appellant. 5. During arguments, learned counsel for the appellant pointed out that on 11.1.2012 case was fixed to consider non-appearance of the complainant on earlier occasion i.e. on 9.1.2012 and after consideration complaint filed by the appellant dismissed and the respondent were acquitted. Learned counsel filed photocopy of page (Annexure A-4) received from diary of learned counsel for the appellant before learned Court and submitted that learned counsel noted next date 19.1.2012 for recording of compromise on previous date of hearing 24.11.2011, not noted 9.1.2012. 6. Learned counsel for the respondent vehemently opposed the above made submissions, and prayed for rejection of appeal. 7. After perusal of order-sheets of learned trial Court, it is clear that complaint was filed on dated 26.7.2007 and after 5 years impugned order dated 11.1.2012 was passed. 8. In between case was listed for consideration of application filed by the respondent under the provisions of section 91 of the Code. Same time parties expressed their interest for compromise. On dated 16.3.2011 application filed under section 91 of the Code were dismissed as not pressed. 8. In between case was listed for consideration of application filed by the respondent under the provisions of section 91 of the Code. Same time parties expressed their interest for compromise. On dated 16.3.2011 application filed under section 91 of the Code were dismissed as not pressed. On next of hearing when the respondent not appeared before learned trial Court, his arrest warrant issued after canceling his bail bonds but on 21.7.2011 he appeared. Then case first time fixed for cross-examination of the complainant and again fixed for filing of compromise on 9.1.2012. 9. It is also clear from the perusal of photocopy of page of Daily Diary of learned counsel (Annexure A-4) that stage was noted for compromise, hence, appearance of the appellant was subject to filing of compromise petition only. 10. Above facts and circumstances of the case go to show that not only the appellant is responsible for delay of trial, to some extent the respondent is also responsible. 11. After perusal of page (Annexure A-4) the mistake is bona fide and for the mistake of a counsel, a litigant should not be suffered. 12. Hence this appeal is allowed, impugned order dated 11.1.2012 is set aside and the Criminal Case No.2550/2007 is restored to its original number. 13. Learned trial Court is directed to decide the Criminal Case on merits as expeditiously as possible. A copy of this judgment be made available to learned trial Court for compliance.