* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4485 OF 2008 (LEAVE TO APPEAL) IN CRIMINAL APPEAL NO. OF 2008 IN COMPLAINT NO. 5515/SS OF 2007 M/s.Hamilton House Wares Pvt.Ltd ....Complainant/ (Orig.Complainants) V/S. 1. State of Maharashtra 2. M/s.T.S.Plast 3. Lalu John ......Respondents no.2 & 3. (Orig.Accused) ------------- Mr.Sachin V.Masurkar, adv.for applicant. Mr.Y.S.Shinde, APP for State-respondent no.1. Mr.Lalit V.Jain i/by.Ravindra Tandekar, adv.for respondents no.2 & 3. CORAM : SMT.R.P.SONDURBALDOTA, J. DATED : 31ST JULY, 2009. P.C. :- 1. This Criminal Application is filed for leave to appeal against the order dated 30th August, 2004 by which the proceedings filed under Section 138 of Negotiable Instruments * 2 * Act by the applicant was dismissed by the learned Metropolitan Magistrate on the ground of default. 2. Heard the advocates. 3. Considering the facts of the case, leave to appeal is granted. The appeal is admitted. 4. By consent, the appeal is taken up for final hearing. Heard the advocates. 5. This appeal challenges the order of the Magistrate court dismissing the proceedings under Section 138 Negotiable Instruments Act on default in appearance. It is claimed by the applicant that on the relevant date i.e. on 30th August 2008 the advocate on record who used to attend to the matter, reached the court late by one and half hour, by which time the case was already dismissed. The absence of the complainant is sought to be explained by stating that the office of the complainant was shifted from Ballard Pier to Bhayander and in the process of shifting, the representative of the applicant failed to remain present in the court. Mr.Masurkar, the learned counsel for the applicant, submits that except for the lapses mentioned in the impugned order, the applicant has been diligent throughout in attending to the matter. It has also filed affidavit of examination-in-chief at the earliest. Mr.Jain, learned counsel for respondents no.2 and 3 submits on the other hand that the * 3 * reason sought to be made in the application is not sufficient and therefore the appeal should not be allowed. 6. Looking to the fact that the appellant has been diligent in attending to the matter throughout except for the last two dates on account of which, the case came to be dismissed for default, I am inclined to allow the appeal. The appeal is hereby allowed. The impugned order dated 30th August, 2004 is set aside and C.C.No.5515/SS/2007 is restored to file. The appellants to pay costs quantified at Rs.5,000/- (Rs.Five Thousand only) to respondents no.2 and 3 in one set. Office to number the appeal. [SMT.R.P.SONDURBALDOTA, J]