1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISCELLANEOUS APPLICATION NO. 48 OF 2009 WITH STAMP NUMBER(APPLICATION NO.3586 OF 2008 Mr. Harold Francisco Nazarius Albuquerque, son of Mr. Bernardino A. L. Albuquerque, Aged about 44 years, Presently residing at 47, Dickerage Road, Kingston Upon Thames, Surrey, KT 13 SR, England, through his Power of Attorney Holder, Mr. Bernardino A. L. Albuquerque, Son of Mr. Belarmino Albuquerque, Aged about 74 years, Presently residing at Beira Mar, Baga-Calangute, Goa. ... Applicant versus 1. Mrs. Fatima M. De Souza, Daughter of Mr. Cecil A. J. D'Souza, Aged about 41 years, Resident of H. No.676, La Marvel Colony, Dona Paula, Goa. 2. State Through Public Prosecutor. ... Respondents Shri Arun Bras De Sa, Advocate for the Applicant. Shri V. Menezes, Advocate for Respondent No.1. Shri C. A. Ferreira, Public Prosecutor for Respondent No.2. 2 CORAM : N. A. BRITTO, J. DATE : 8TH JUNE, 2009. ORAL ORDER The complaint was dismissed and consequently the accused was discharged under Section 500 I.P.C. by Order dated 22-8-2008 of the learned J.M.F.C., Panaji. The Complainant has filed the present application for condonation of delay of 50 days in filing leave to appeal. 2. Heard Shri Arun Bras De Sa, learned Counsel on behalf of the Applicant/Complainant and Shri V. Menezes, learned Counsel on behalf of Respondent No.1/Accused. Respondent No.1/Accused is the estranged wife of the Complainant and it is informed that a suit for divorce is pending between them. The records and proceedings show that the Complainant's evidence began on 18-4-2007 and continued on 20-4-2007 and in between another witness was summoned. It is stated by Respondent No.1/Accused on affidavit that 18 hearings had taken place and the complaint was dismissed on 22-8-2008 and except for the hearings on 18-4-2007 and 20-4-2007 the Complainant had not appeared before the Court. This statement has not been controverted on behalf of the Complainant. That apart, the records and proceedings also show that at one stage i.e. on 29-6-2007 bailable warrant was issued to the Complainant and thereafter the Complainant again remained absent on 17-8-2007, 26-9-2007, 29-10-2007, 12-12-2007, 11-1-2008, 11-2-2008, 10-3-2008 and 9-4-2008, on which day the 3 deposition of PW2/Ashish Shirodkar was recorded. Thereafter, the case was adjourned to 25-6-2008, 11-8-2008. On this day the learned Magistrate took note that the Complainant had remained absent for many hearings and was also absent on that day and also gave final opportunity to the Complainant to lead evidence and posted the case on 22-8-2008 and as the Complainant remained absent on 22- 8-2008, the learned Magistrate proceeded to discharge the accused under Section 500 I.P.C. presumably because the case was being conducted as a warrant triable case. 3. The delay of 50 days (for filing leave to appeal) is sought to be explained, on behalf of the Complainant, who is stated to be a resident of England, by stating that the Complainant's attorney who is none other than the Complainant's father had to proceed to London on 31-3-2008 on account of medical emergency but failed to inform his lawyer. No evidence in support of the medical emergency has been produced but certainly that could not be a ground for the Complainant, who was under cross-examination, to have remained absent before the Court on 9-4-2008 and thereafter. It is not the case of the Complainant that the Complainant's evidence was to be discontinued or was to be continued with that of his attorney. It does appear from the copy of the passport produced that the Complainant had visited India on 22-2-2008. Learned Counsel on behalf of the Complainant is unable to make any statement as to when the Complainant thereafter returned to England and yet it appears that on 10-3-2008 the Complainant sought an exemption on the ground that the Complainant was 4 abroad. Exemption applications appear to have been filed from time to time and granted. Since the Complainant was under cross-examination, it is the Complainant's absence which ought to have been justified and not that of the attorney. The Complainant chose to remain absent even after the learned Magistrate gave a last opportunity to the Complainant and prior to that even a bailable warrant having been issued against the Complainant. 4. Considering the facts of the case, this is not a fit case to condone the delay. Application dismissed. N. A. BRITTO, J. RD