spb/- 1 22-10-cra4616-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4616 OF 2010 WITH CRIMINAL APPEAL NO. OF 2006 Vijaya Bank ... Applicant. (Org.Complainant) Vs. Bajirao Anandrao Parit & Anr. ... Respondents. --- Mr. A.S. Patil for the Applicant. Mr. A.S. Shitole, APP for the State. ----- CORAM : V. M. KANADE, J. DATE : 22nd OCTOBER, 2010. P.C. 1 Heard learned counsel appearing on behalf of the applicant-bank and learned APP for the State. 2 The applicant challenges the order passed by the learned Judicial Magistrate, First Class, Kolhapur, who was pleased to dismiss the complaint filed by the applicant-bank for the offence punishable under section 138 of the Negotiable Instruments Act. The learned counsel for the applicant submits that the applicant-complainant had remained present in the matter on number of dates and that his Advocate remained absent. He submitted that the Advocate of the complainant was not spb/- 2 22-10-cra4616-10.sxw diligent and for the fault of the Advocate, the complainant should not be put to loss. He further submits that the applicant is a nationalized bank and, therefore, could not keep a track of the matter on account of the assurance given by their Advocate. He further submitted that the applicant had ultimately changed the Advocate and appointed a new Advocate. It was then submitted by the learned Advocate for the applicant-complainant that one more chance be given to the complainant to file affidavit in lieu of evidence. 3 The offence under section 138 of the Negotiable Instruments Act is a technical offence which entails penal consequences for non-payment of the legal debt and existing liability. When the cheque which is given for discharge of the said liability is dishonoured, the trial in such cases is a summary trial by virtue of the provisions of section 143 of the N.I.Act and it has to be tried summarily by the learned Magistrate. It is, therefore, expected that the complianant should be diligent in pursuing the case. In the present case, the complainant was to file affidavit- in -lieu of evidence. However, inspite of taking number of adjournments, such an affidavit in lieu of evidence was not filed and the complainant remained absent. Assuming that the Advocate who appeared on behalf of the complainant was not diligent, it was the duty of the complainant to spb/- 3 22-10-cra4616-10.sxw find out date and pursue the matter by remaining present in the court. The Rozanama indicates that the matter was kept for dismissal on 03.02.2009, 25.02.2009 and 25.03.2009. Thereafter, it was again adjourned and on 09.04.2009 and 22.04.2009 again applications were made for adjournment which was granted. However, on 11.05.2009, none appeared on behalf of the applicant. Thereafter, the matter was kept on 26.05.2009 for filing affidavit in lieu of evidence. Even on that date also nobody appeared on behalf of the complainant. Sufficient time, therefore, was given by the learned Magistrate to the complainant to file their evidence. However, neither the complainant nor his Advocate were diligent. Perusal of the Rozanama indicates that not only his Advocate but the Complainant himself did not pursue the matter in any manner. Therefore, suggestion made by the learned counsel for the applicant cannot be accepted. No case is made out for granting leave to file appeal. Appeal does not survive. 4 The application is, therefore, rejected accordingly. [V.M. KANADE, J.] .....