1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO. 485 OF 2009 Sow. Shubhada w/o Sunil Koranne, age 35 yrs, Occ. Service, Resi Flat No.11, Bilvakunj Apartment, Nageshwarwadi, Aurangabad. Appellant. V e s u s 1. Siddiqui s/o Abdul Alim, age 51 yrs, Occ. Business, r/o flat No.6, Saptashrungi Apartment, Behind Business Bank, Near Banarji’s Bungalow, Nashik Road, Jail Road, Nashik. 2. The State of Maharashtra (Copy to be served on the office of A.P.P. High Court of Bombay Bench at Aurangabad.) Respondents. Mr. N.K. Tungar,Advocate for the appellant. Shri S.S. Kazi Advocate for respondent No.1. Learned APP for the state respondent No.2. CORAM : V R. KINGAONKAR, J. DATE : 27 th JULY, 2009 PER COURT :- 2 1. Rule. Rule made returnable forthwith and heard finally. 2. The petitioner is complainant and the respondent No.1 is the accused in relation to criminal case bearing SCC No.2847/2003. The alleged offence is punishable under section 138 of the Negotiable Instruments Act. The respondent No.1 is said to have given cheque in discharge of financial liability. The cheque was dishonoured and therefore demand notice was issued. Inspite of service of the demand notice, respondent No.1 did not pay the amount and hence the complaint was filed. 3. Heard the learned counsel for the parties. 4. What emerges from the record is that on 07.08.2008, the petitioner filed application Exh.34 for adjournment. In her application, it was stated that her Advocate Shri Sengaonkar informed her that she was required to file affidavit. However, on date of hearing, her advocate had gone out of station and therefore, she was unable to file the affidavit. The learned Magistrate rejected the application for adjournment. Thereafter by impugned order the complaint itself was 3 dismissed. The petitioner preferred criminal revision application No. 285/2008. The learned sessions Judge also dismissed her revision application as it was found that the same was not maintainable. Hence the petition. 5. Heard the learned counsel for the parties and learned A.P.P. 6. At the outset, it may be stated that though private complaint case was filed in the year 2003, yet the process could not be served on the respondent No.1 for a long time. On 17.11.2007, application was given for issuance of non bailable warrant against him. The application (Exh.16) shows that the respondent No.1 was not attending the Court since long. The learned Magistrate there after issued a show cause notice The respondent No.1 appeared on 01.12.2007. He was released on bail. It appears that petitioner sought adjournment on 25.01.2008 and 06.02.2008 which was allowed by imposing costs of Rs.200/- and Rs.750/- respectively on each occasion. On the next date, her Advocate was present in the Court. It is further 4 revealed that the respondent No.1 sought exemption from personal attendance and was allowed to remain absent. The matter was adjourned there after for evidence. On 10.07.2008, the complaint was scheduled for adducing of evidence. There after the case was adjourned for dismissal order on 07.08.2008. It does not appear that there were many dates availed by the petitioner after appearance of the respondent No.1 till month of December, 2007. In her application she gave valid reasons that her Advocate Shri Sengaonkar was out of station. The learned Judicial Magistrate could have posted the criminal complaint case on the next day or a short adjournment of three to four days could be granted or further costs could be imposed. The absence of the Advocate was a proper ground because the complainant could not have herself drafted the affidavit which was to be filed. Hence, I am of the opinion that too dogmatic view is taken by the learned Magistrate. 7. Considering the reasons stated above, the impugned order is quashed. 5 8. Leave to appeal is granted and appeal is partly allowed. 9. The learned Magistrate is directed to restore the complaint case to its original position and to allow the petitioner/appellant/complainant to file her affidavit on 17.08.2009. If the appellant will not file her affidavit on 17 th of August 2009 then the complaint may be dismissed. The appellant will be at liberty to file her affidavit on any earlier date by taking the criminal case on board of hearing and there after, or even if affidavit is filed on 17.08.2009, then too, she shall appear for cross examination on 24 th of August, 2009 and shall not ask for adjournment. 10. Appeal is accordingly disposed off. 11. Record and proceedings shall be sent to the Court of Learned Magistrate, immediately. ( V. R. KINGAONKAR, J. ) ..... aaa/485.09