[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL W.P.NO.1473 OF 2007 Shri.Balasaheb Ramchandra Manade ..Petitioner Vs. Shri.Atul W.Bhalerao and Ors. ..Respondents ... Mr.B.A.Walimbe advocate for Petitioner Mr.K.P.Mali Adv. for Respondent No.1 Mr.P.M.Arjunwadkar Adv. for Respondent No.3 Mr.Y.M.Nakhwa A.P.P. for the State ... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : NOVEMBER 25, 2008 DATE : NOVEMBER 25, 2008 DATE : NOVEMBER 25, 2008 P.C. P.C. P.C. 1. Heard the learned advocate for the petitioner-original accused, learned advocates for the respondent nos.1 and 3 and the learned APP for the State. Respondent no.1 is the original complainant. 2. Complaint came to be filed against the petitioner under Section 138 of Negotiable Instruments Act. The said complaint is numbered as C.C.No.607 of 2005 and it is pending before the learned Judicial Magistrate F.C. Vth Court, Ulhasnagar. In the said case, process came to be [-2-] issued against the petitioner under Section 138 of Negotiable Instruments Act on 11.4.2005. Being aggrieved thereby, petitioner preferred revision before the Sessions Court. As there was delay in preferring revision, application bearing Misc. Application No.75 of 2006 was preferred. The said application came to be rejected by the learned Sessions Judge by order dated 13.6.2007, hence, this petition. 3. It is seen that process came to be issued against the petitioner by order dated 11.4.2005. Thereafter, in July, 2005 the petitioner preferred application before the Magistrate for recalling of process. The said application was pending before the learned Magistrate for a long time and ultimately it came to be rejected by the learned Magistrate by order dated 28.9.2006 by stating that the application for recall of process before him is not maintainable. Thereafter, the petitioner preferred revision before the Sessions Court on 10.12.2006. The learned Sessions Judge observed that no sufficient cause has been made out for condonation of delay of one year and 7 months in preferring the revision and rejected the [-3-] application for condonation of delay. 4. It is seen that the process came to be issued against the applicant under Section 138 of Negotiable Instruments Act. At that time, the view prevailing was that application for quashing of process could be preferred before the Magistrate. This was in view of the decision of the Supreme Court in the case of K.M.Mathew Vs. State of K.M.Mathew Vs. State of K.M.Mathew Vs. State of Kerala and another Kerala and another Kerala and another reported in 1992 (1) SCC 217 1992 (1) SCC 217 1992 (1) SCC 217, hence, application came to be preferred before the learned Magistrate. However, the said application came to be rejected on 28.9.2006 because by then the legal position was that the Magistrate could not entertain application for recall of process. Thus, it is seen that the petitioner followed his remedy diligently for recalling of process. The matter remained pending with the learned Magistrate till 28.9.2006. Thus, as far as the period upto 28.9.2006 is concerned, I find that there is satisfactory explanation till then. 5. In his application for condonation of delay, the petitioner has clearly mentioned that his application for recalling of process, came to be [-4-] rejected by the learned Magistrate on 28.9.2006. Thus explanation has been furnished by him in preferring revision. In such case, it cannot be said that there was lack of diligence on the part of the petitioner. After the order dated 28.9.2006 came to be passed, revision has been preferred on 10.12.2006. Looking to the above facts, in my view, sufficient cause has been made out for condonation of delay. In the facts of this case and in the interest of justice, delay deserves to condoned and is accordingly condoned. Order dated 13.6.2007 passed by the learned Addl. Sessions Judge, Kalyan is set aside. Misc. Application No.75 of 2006 for condonation of delay is allowed. The learned Sessions Judge shall dispose of the Revision on merits in accordance with law. In order to enable the petitioner to approach the concerned Sessions Court to pursue the revision, proceedings before the trial Court are stayed for a period of four weeks from today. 6. Writ Petition is disposed of accordingly. [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.]