APPLN.4681-09 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION No. 4681 OF 2009 M/s. Sunil Jewellers ...Applicant Vs. State of Maharashtra & Ors. ...Respondents *** Mr. Dilip H. Shukla, for the Applicant. Mr. Hemony Janwala & Mr. Manish Pol i/b Auroma Law, for Respondent No.2. Mr. A. S. Shitole, APP for Respondent-State. *** CORAM: V. M. KANADE J. DATE : OCTOBER 19, 2010 P.C. 1. Heard the learned counsel for the applicant and the counsel for respondent No.2. By this application, the applicant is challenging the order passed by the trial Court, dismissing the complaint on account of the absence of complainant and his advocate, in exercise of discretion under S. 256 Cr.P.C. 2. The learned counsel for the applicant submits that on account of ill health, he could not remain present on that day and secondly, it was submitted that his advocate was held up in this Court APPLN.4681-09 - 2 - and therefore, he could not remain present in the trial Court. He also invited my attention to the copy of roznama and submitted that on two earlier dates, the complainant was absent. It was therefore, submitted that the learned Magistrate ought to have given one more chance to the complainant to file his affidavit in lieu of evidence. 3. On the other hand, the learned counsel appearing on behalf of respondent No.2 submits that the complainant was represented by a law firm which had about 20 lawyers working in the said firm and since the complainant and his advocate were very well aware that on the next date, the complaint was kept for dismissal/for filing affidavit in lieu of evidence. The advocate of the complainant ought to have made necessary arrangements. It is submitted that since the complainant did not have the relevant material on record to substantiate his case that he remained absent. 4. In my view, normally this Court while considering the application for restoration of the complaint which is dismissed under S. 256 Cr.P.C. is lenient and expects that one more chance should be given to the complainant to lead evidence on merits. However, in this case it is found that the complainant is not diligent in pursuing the complaint in spite of warning being given by the trial Court, therefore, this is not a APPLN.4681-09 - 3 - case to interfere in the impugned order. 5. It is to be borne in mind that S. 138 of the Negotiable Instruments Act, non payment of legal debt as a result, is made a penal offence which offence would be a civil liability on account of non- payment of amount which is due and payable. This being the position, it is duty of the complainant to be diligent to pursue the case in diligent manner. The complainant is expected to remain present at the time when his presence is necessary, particularly when the matter is fixed for hearing. The learned Magistrate, in my view, is justified in exercising the discretion vested in him under S. 256 Cr.P.C. by dismissing the complaint on account of continued absence of the complainant. 6. The copy of roznama indicates that on 16-4-2009, 27-5-2009, and on 11-8-2009 the complainant had remained absent. It is therefore, evident that the complainant was not diligent in pursuing the matter. Hence, it is not possible to interfere with the impugned order. Leave to appeal is therefore, refused. Consequently, the appeal does not survive, and is accordingly disposed of. [ V. M. KANADE J.]