IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.552 OF 2008 IN CRIMINAL APPEAL NO. OF 2008 CFL Capital Financial Services Ltd. .. Appellants V/s. Viral Filaments Ltd.& Ors. .. Respondents Mr.B.A.D' Lima i/b.M/s.D'Lima & Associates for the Appellants. Mr.Manish Bhore i/b.Gaurav Agarwal for Respondents. A.S.Shinde, A.P.P.for the State. CORAM : A.R.JOSHI, J. DATED : APRIL 15TH, 2009. P.C. Heard the rival submissions at length. 2. It is the application of condonation of about 900 days delay in filing the Appeal against the order of acquittal passed by the Metropolitan Magistrate, Bandra dated 16th June, 2005. Said order of 1 Metropolitan Magistrate Court was passed in 138 of Negotiable Instrument Act proceeding filed by present applicant complainant against the present Respondent Nos. 1 to 5. By the said order, original complaint was dismissed for want of prosecution and orders under section 256 of Criminal Procedure Code were passed. Thus, acquitting all the five accused present Respondent Nos. 1 to 5. 3. It is rather a peculiar case in which it can be ascertained as to how far there can be latches on the part of the party who alleged that the cheque of about 19 lakhs and odd given to the party got bounced. It would be profitable to have certain background of the present matter in order to have proper prospective and in order to decide whether still a latitude can be granted in favour of the Applicant. Earlier, a 138 of Negotiable Instrument Act proceeding was lodged against the accused persons in the year 1999 by the present applicant. It was lodged before the Metropolitan Magistrate Court at Calcutta. Thereafter on the premise that rival parties are of Mumbai and having other cases at Mumbai, the present matter came to be transferred to Metropolitan Magistrate Court at Mumbai. For said purpose a transfer petition (criminal) No.44 of 2001 was preferred before the Hon' ble Supreme Court and it was allowed by order dated 3rd December, 2001. Thereafter, on 31st December, 2001 the case papers were received by the 12th Metropolitan Magistrate Court, Banda by post and the matter was adjourned from time to 2 time. Being the matter transferred from the Hon' ble Supreme Court, Metropolitan Magistrate Court thought it fit to send notices to both the parties for securing their presence and to deal with the matter further. 4. During the arguments on behalf of the Applicant, it is submitted that no such notices were in fact served on the complainant and as such he had no knowledge regarding such pendency of matter before the Metropolitan Magistrate Court at Mumbai. At this juncture, it must be noted that such transfer to the Metropolitan Magistrate Court, Mumbai was at the instance of the Respondents and both the parties including present Applicant original complainant were represented by their Advocates before the Supreme Court. Since the year 2001 till the year 2005 the matte was pending before the Metropolitan Magistrate Court at Mumbai. In the meantime, the matter was transferred from one Metropolitan Magistrate Court to another Metropolitan Magistrate Court and thereafter also various dates were given. By order dated 24th February, 2005 when the case was transferred to 12th Metropolitan Magistrate Court, again it was adjourned to 10th June, 2005 for dismissal. However, on that day again it was finally adjourned for dismissal on 16th June, 2005. On 16th June, 2005 due to absence of complainant and his Advocate complaint came to be dismissed under section 256 of Criminal procedure Court and accused were acquitted. 3 5. According to the Applicant Original complainant, some time on 25th January, 2008 he came to know regarding such dismissal of his complaint which was effected in June, 2005, and then he made the application for certified copy and received it on 25th July, 2008. Thereafter also till 1st September, 2008 no steps were taken and present Application for condonation of delay came to be filed on or about 1st September, 2008. 6. During the arguments, it is submitted on behalf of the Applicant that though there were directions of the learned Metropolitan Magistrate Court for issuance of notices to both the parties, there is no compliance and no such intimations were received. By making such arguments, it is pre-supposed by the applicant that it was in fact his right to be served with notice of transfer of the matter from Calcutta to Mumbai and without such intimation it was not possible to him to see further progress. In the opinion of this Court, such belief of the original complainant is very much erroneous and, cannot sustain. In fact, he was duty bound to follow up the matter and to take proper remedial measures when it was known to him regarding the transfer of matter from Calcutta to Mumbai. Admittedly, there were other litigations between rival parties at Mumbai and as such there should have been much vigilance shown by the Applicant to find out what had happened to his matter of the 4 bouncing of the cheque of worth more than Rs.19 lakhs and it was transferred to Mumbai in the year 2001. It is surprising that only on 25th January, 2008 during some enquires, he came to know regarding dismissal of his criminal complaint which was effected on 16th June, 2005. Even after receiving the certified copy on 25th July, 2008, he had not rushed to this Court and still there was a delay in filing the present application. As such total delay is more than 900 days and in the opinion of this Court such delay has reached to such a stage that it dis-entitled the applicant for getting the relief. More so, when such huge delay is not explained by any cognate reason. This Court has not lost sight of the fact and the directions as to the Court should not be hyper technical in such type of matters still considering the peculiar facts of the case and considering the transfer of case from Calcutta to Mumbai, more so, when rival parties were litigating with each other at Mumbai, if latitude is given in favour of the Applicant, it would be misplaced. 7. In the result, present criminal application must fail and same is dismissed and accordingly disposed of. (A.R. JOSHI, J.) 5