1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR Criminal Application No.209 of 2008 (M/s. Hindusthan Insecticides Ltd. v. Ashok Malkarjun Swami) -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-- Office Notes, Memoranda of Coram, appearances, Court's orders or directions : Court's or Judge's orders and Registrar's orders. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Ms K.D. Muley, Advocate for Applicant. Shri A.S. Mardikar, Advocate for Respondent. CORAM : R.C. Chavan, J. DATE : 13th October, 2008 Heard the learned counsel for the parties. This is an application for leave to file appeal against the dismissal of complaint for offence punishable under Section 138 of the Negotiable Instruments Act on the ground of failure of the complainant to appear before the Court and tender evidence. The learned counsel for the applicant states that the applicant is a Public Sector Undertaking. He further states that though the applicant is ready with the evidence, the plea of accused was not recorded as the accused had requested that he would arrange for money in a couple of months and liquidate the dues. This contention in para 3 of the application is contested by the non-applicant, who has stated that this is false. The applicant states that its Advocate could not appear before the Trial Court due to high fever. In that case, the Advocate should have instructed some colleague to mention the matter before the Court. In any case, the learned Magistrate did not dismissed the application on the same 2 day. He posted it after a week and dismissed it after a week when again the complainant remained absent. The record has been called and it shows that on 1-12-2007, the learned Magistrate had observed that the complaint was fixed for dismissal and that the complainant did not file an affidavit, he, therefore, posted the matter for dismissal on 7-12-2007. The roznama shows that the complainant's Advocate was in fact present and not absent, falsifying the contention of the applicant in para 4 that on 1-12-2007 the Advocate for applicant was absent due to high fever. In view of this, it cannot be said that the order passed by the learned Magistrate is untenable or perverse warranting entertainment of this appeal. The application for leave to file appeal is refused. Consequently, the appeal is dismissed. JUDGE Lanjewar