* 1 * W.P. 1560.2010 12.1.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1560 OF 2010 Prakash Sahakari Patsanstha Maryadit ......Petitioner/Orig.Comp V/S. Rajnish Sharma and anr .........Respondents * * * * * * Mr. R.L. Majgaonkar, Advocate for the petitioner. None for respondent no.1. Mrs. M.R. Tidke, APP for State-respondent no.2. Coram : Smt. R.P. SondurBaldota, J. 12 January, 2011. P.C. : 1. This petition is filed to challenge the order dated 20th March, 2010 passed by the Metropolitan Magistrate, 53rd Court, Mulund, Mumbai dismissing the application filed by the petitioner for restoration of the complaint, being C..C. No. 56/SS/2005. Notice of the application has been served upon respondent no.1 who is absent despite service. 2. The applicant filed C.C. No.56/SS/2005 against respondent no. 1 for the offence punishable under Section 138 Negotiable * 2 * W.P. 1560.2010 12.1.2011 Instruments Act for dishonour of the cheque in the sum of Rs. 2,85,000/- given by respondent no.1 to the applicant. According to the applicant, it had given loan to one Smt. Nirmala Anand Mohite and Ms. Roopali Ananda Mohite. Wife of respondent no.1, Smt. Vanita Sharma had guaranteed repayment of the loan by the borrowers. According to the applicant, when the borrowers neglected to repay the loan, it initiated legal proceedings against the guarantor alone, Smt. Vanita Sharma. Therefore, respondent no.1 vide his letter dated 4th October, 2004 forwarded the cheque in question in discharge of the loan liability with a request that the legal proceedings initiated by the applicant against his wife be stopped. As per the complaint, the total amount of loan liability was of Rs.3,41,642/- as standing by the end of October, 2004. The cheque issued by respondent no.1 when presented for payment was dishonoured. Therefore, after serving of statutory notice, the applicant filed complaint being C.C. No. 56/SS/2005 in the Court of Metropolitan Magistrate, 53rd Court, Mulund. Thereafter, as the applicant did not attend to the matter diligently, respondent no.1 filed the application dated 12th July, 2009 requesting for dismissal of * 3 * W.P. 1560.2010 12.1.2011 the complaint. On 23rd July, 2009 the trial court noted that after the plea was recorded in the year 2006, the matter was being adjourned on one pretext or the other and there was no progress made in the case. It also noted that the complainant and his counsel were absent since the last two dates and dismissed the complaint. The applicant, then filed an application for restoration which came to be dismissed by the impugned order. In his application, the applicant gave an explanation for his absence only for the date of 23rd July, 2009. The trial court noted that the matter was dismissed not only because the applicant had remained absent for a day or two, but, it was dismissed considering the fact that since the year 2005, there was not much progress made in the case. Even after the matter was posted for evidence in January, 2006 the applicant and advocate were negligent in attending to the matter. Since this conduct of the applicant has not been explained anywhere, this Court is not inclined to interfere with the order of dismissal. Hence, the petition is dismissed. [Smt. R.P. SondurBaldota, J]