1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 79 OF 2009 Fallary Enterprises, Partnership form, through its partner, Shri Chinmay G. Fallary, major, married, Business, having office at New Market, Margao, Salcete Goa. ... Appellant V e r s u s Sandip Enterprises, Through its Proprietor Shri Sandip Agaskar, Major, married, business, Near Sai Temple, Kankaband, Mapusa, Bardez Goa. ... Respondent Mr. Judas Chagas Silva, Advocate for the Appellant. Mr. J.J. Mulgaonkar, Advocate for the Respondent. Coram :- R. M. SAVANT, J. Date :- 15th February, 2010. 2 ORAL JUDGMENT: This Appeal is filed challenging the order dated 4.4.2009 passed by the learned J.M.F.C., Margao, by which order the application for exemption from appearance filed by the Appellant who is the original complainant came to be rejected. Consequently, the evidence of the complainant came to be closed and the complaint was dismissed for non prosecution, resulting in acquittal of the Respondent herein i.e. the accused. 2. The complaint has been filed for dishonour of the three cheques being cheque No.2901 for Rs.30,000/- dated 17.10.2003, cheque No.3722 for Rs.45,000/- dated 5.11.2003 and cheque No.3723 for Rs.44,655/-dated 20.11.2003. The said complaint was numbered as Criminal Case No.5/N/2004. The records of the said Criminal case were called from the Court of the learned J.M.F.C., Margao. The Roznama discloses that the complainant has been absent on numerous dates on which the said compliant was kept for recording of evidence of the complainant. On 2.7.2007 the learned J.M.F.C. adjourned the compliant as and by way of last chance to the complainant. As indicated above, the Roznama 3 indicates that even thereafter the complainant was seeking time on some ground or the other. Lastly, the exemption was sought by the complainant on 4.4.2009 when the complaint was kept for recording of evidence of the complainant. The exemption was sought by the complainant by filing an application in that behalf which came to be rejected by the learned J.M.F.C. by the impugned order dated 4.4.2009. 3. I have heard the learned Counsel for the parties. Learned Counsel for the Appellant Mr. Silva submitted that the complainant was present for a whole session on 5.2.2009 which was the date earlier to the date on which the complaint has been dismissed for default. However, on the said day for want of time the Court did not take up the said criminal case. Thereafter on 21.03.2009 the complainant could not remain present and on 4.4.2009 the complainant had filed an application for exemption which came to be rejected. Learned Counsel for the Appellant submitted that the said absence of the complainant was in view of the fact that the accused was making payments in instalments of Rs.5000/- and, therefore, the complainant did not feel the necessity of remaining present on the dates when the said complaint was kept for 4 recording of his evidence. 4. On the other hand, Shri Mulgaonkar, learned Counsel appearing for the Respondent/Accused submitted that the Roznama discloses the indolence and the negligence with which the complaint was being prosecuted by the complainant. The learned Counsel submitted that after the complaint was kept for recording of evidence, the complainant has remained absent on numerous dates without any justification. Learned Counsel submitted that the accused has shown his bonafides by paying the amount in instalments to the complainant which has also been recorded in the Roznama. Learned Counsel submitted that some payments have also been made after the dismissal of the complaint. 5. Learned Counsel therefore submitted that no interference is called for with the impugned order dated 4.4.2009. 6. I have heard the learned Counsel for the parties and perused the record of the Trial Court. The Roznama of the case in question discloses that after the complaint was kept for recording of evidence of the complainant,he has been absent on numerous occasions and inspite of being given a last chance by the learned 5 J.M.F.C. on 2.7.2007, the complainant has been seeking time on one pretext or the other. The complainant has therefore failed to remain present when the complaint was kept for recording of his evidence. The Rozanama also discloses the careless and indolence of the complainant in prosecuting the complaint. The complainant as mentioned herein above, as from time to time filed applications seeking exemption though he was obliged to lead his evidence in view of the final chance given by the learned J.M.F.C. Though the complainant has been careless and negligent in prosecuting the complaint in my view as and by way of last opportunity,the complainant is required to be given an opportunity to prosecute his complaint on merits. The impugned order is therefore required to be set aside. Resultantly, the impugned order dated 4.4.2009 is set aside and the matter is remanded back to the learned J.M.F.C., Margao for a decision afresh in accordance with law. However, the same would be contingent on the complainant paying costs of Rs.5000/- to the accused i.e. the Respondent herein within three weeks of date as a condition precedent. Only on the complainant producing the evidence of having paid the said costs to the Respondent, the complaint would be restored in terms of this order and would be proceeded with. If the costs are not paid as directed 6 by this Court, the benefit of this order restoring the complaint to file would not enure to the complainant and consequently, the instant Appeal would stand dismissed. 7. The Appeal is allowed to the aforesaid extent with parties to bear their respective costs. R. M. SAVANT, J. at*