1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 376/2010 Udaykumar Kashinath Yadawad, Age : 45 years, Occu. Business, M.D. Of Saurav Finance and Investment Corporation Ltd., Latur, Gandhi Market, Latur. ...Appellant. Versus Shri Shaikh Firoz Yusuf, Age : Major, Occu. Business, R/o Post Tungi Tq. Ausa Dist. Latur. ....Respondent. Mr. V.D. Gunale, Advocate for appellant. CORAM : A.V. NIRGUDE, J. Date : 23rd November, 2010. ORAL JUDGMENT:- 1. Admit. 2 This appeal is filed against the order dated 02/06/2009 dismissing a private complaint filed by the appellant under Section 138 of Negotiable Instruments Act against the respondent. 3 The appellant is the Manager of a finance company, which had lent a loan of Rs.50,000/- to the respondent. The respondent committed default in repaying the amount and thereafter issued the cheque in question. The cheque failed. Despite the notice, the amount was not paid. Therefore, the complaint was lodged in August, 2005. But till 2nd June, 2009, the appellant did not take steps 2 in the case and ultimately, the learned Judicial Magistrate dismissed the complaint for default. 4 The respondent though served with notice, has not come before the Court to oppose the appeal. But that does not mean that the appeal should be allowed without examining the merits. In the appeal memo, there is not a whisper as to why the appellant did not attend the case on 2nd June, 2009. The appeal memo did not further mention as to what further step was required to be taken on that day. The appeal memo does not further mention as to on what stage the complaint case was pending on the date when it was dismissed. The appellant has made no attempt to explain as to why the appellant or his advocate remained absent on 2nd June, 2009 and why the apparent lapse on their part should be condoned. Yet the learned advocate appearing for the appellant wants a favourable order in this appeal. It is apparent that the appellant’s advocate in the lower court and the appellant were grossly negligent in handling the case. The very fact that the case was pending for four long years, indicates that the appellant and their advocate in the lower court were very casual in conducting the case. Probably, they were lethargic because amount involved was relatively small. The learned advocate appearing for the appellant admitted that even a civil suit for recovery of the amount has not been filed. In view of this, because of negligence on the part of 3 the appellant and their advocates, the appellant has almost lost the amount of the cheque in question. 5 This appeal should be dismissed so that the appellant would learn a lesson from this dismissal. But in order to afford an opportunity to the appellant to get the matter decided on merits, I am inclined to allow the appeal imposing heavy cost on the appellant. ORDER On the appellant’s depositing Rs.15,000/- (Rs. fifteen thousand) in the lower Court on or before 31st December, 2010, the appeal would stand allowed and the complaint case would stand revived. (A.V. NIRGUDE, J.) ts k/ok